1 :JAN o 2 zoza; 2 3 ly:R. Willis,� 4 5 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN DIEGO, CENTRAL DIVISION 10 JANE DOE NOS. I - 22, inclusive, individuals; 11 Plaintiffs, 12 v. 13 GIRLSDOPORN.COM, a business organization, form unknown; MICHAEL J. PRATT, an individual; ANDRE GARCIA, an individual; MATTHEW WOLFE, an individual; BLL MEDIA, INC., a California corporation; BLL MEDIA HOLDINGS, LLC, a Nevada limited liability company; DOMI PUBLICATIONS, LLC, a Nevada limited liability company; EG PUBLICATIONS, INC., a California corporation; MIM MEDIA, LLC, a California limited liability company; BUBBLEGUM FILMS, INC., a business organization, form unknown; OH WELL MEDIA LIMITED, a business organization, form unknown; MERRO MEDIA, INC., a California corporation; MERRO MEDIA HOLDINGS, LLC, a Nevada limited liability company, 14 15 16 17 18 19 20 21 22 23 LEAD CASE NO.: Case No. 37-2016-00019027-CU-FR-CTL CONSOLIDATED WITH: Case No.: 37-2017-00033321-CU-FR-CTL Case No.: 37-2017-00043712-CU-FR-CTL [PROPOSED] STATEMENT OF DECISION Judge: Hon. Kevin A. Enright Dept.: 904 Trial Date: August 19, 2019 Defendants. 24 25 26 27 28 [PROPOSED] STATEMENT OF DECISION 1 Having considered the pleadings, evidence presented, and arguments of counsel, and having 2 assessed the credibility of the witnesses, the Court now submits this Proposed Statement of 3 Decision. 4 I. 5 STATEMENT OF DECISION This is an action for fraud, concealment, false promise, misappropriation of likeness (both 6 statutory and common law), and violation of Business and Professions Code sec. 17200 brought by 7 Plaintiffs Jane Does 1 through 22 (collectively, Plaintiffs) against Defendants GirlsDoPorn.com, 8 Michael Pratt, Matthew Wolfe, Andre Garcia, BLL Media, Inc., BLL Media Holdings, LLC, EG 9 Publications, Inc., MlM Media, LLC, Merro Media, Inc., Merro Media Holdings, LLC, and Domi 10 Publications, LLC (collectively, Defendants). 11 Jane Does 1-22 were represented by Edward Chapin, Esq. and Cara Van Dorn, Esq. of 12 Sanford, Heisler & Sharp, LLP, John O'Brien, Esq. of Stokes O'Brien, LLP, and Brian Holm, Esq., 13 of the Holm Law Group, PC. Defendants GirlsDoPorn.com, Michael Pratt, Andre Garcia, Matthew Wolfe, BLL Media, 14 15 Inc., BLL Media Holdings, LLC, EG Publications, Inc., MIM Media, LLC, Bubblegum Films, Inc., 16 Merro Media, Inc. and Merro Media Holdings, LLC were represented by Aaron Sadock, Esq. and 17 Bonnie McKnight, Esq. of Panakos Law, APC and Daniel Kaplan, Esq. of the Law Offices of 18 Daniel K aplan. Defendant Domi Publications, LLC was represented by George Rikos, Esq. of the Law 19 20 Offices of George Rikos. Plaintiffs sought and received defaults against Clockwork Productions, Inc., Oh Well Media 21 22 Limited, and Sidle Media Limited. 23 II. FINDINGS OF FACT Summary and Overview of Defendants' Business Plan 24 A. 25 Defendants run an online pornography business, including most notably a subscription 26 website called GirlsDoPorn.com. The site features sex videos of young women between the ages of 27 18 and 23. Defendants' business is premised on the construct that the women in the videos are not 28 professional porn stars but are amateur college-aged women filming pornography for the first and -2!PROPOSED] STATEMENT OF DECISION 1 only time. Subscribers are meant to be left with the impression that the women in Defendants' 2 videos are everyday women that they could encounter in their communities, campuses, and daily 3 lives. 4 Defendants are aware that the models recruited for GirlsDoPorn do not intend to pursue a 5 career in adult entertainment. The women are mostly students with careers ahead of them who have 6 only even considered Defendants' solicitations to film a pornographic video due to some immediate 7 and pressing financial need. 8 In accordance with this one-time-only amateur paradigm, Defendants' business is dependent 9 on recruiting a constant stream of new models in order to generate fresh website content. The Court IO finds Plaintiffs have proven that Defendants use fraudulent practices to facilitate such recruitment. 11 Defendants take considerable, calculated steps to falsely assure prospective models that their videos 12 will never be posted online, come to light in the United States, or be seen by anyone who might 13 know them. Defendants' assurances of privacy and security are reinforced by paid "references"- 14 women hired who are or pose as previous models and (in accordance with a script) provide new 15 recruits with false comfort that the experience is safe and enjoyable, and that the videos have never 16 appeared online or been discovered by anyone in the models' lives. 17 Once a newly-recruited woman has flown to San Diego, she finds herself alone in a hotel 18 room with two men about to shoot a pornographic video. At this point, Defendants have her sign 19 documents containing dense and ambiguous legalese, which Defendants falsely describe as being 20 the written version of what she has already agreed to. Defendants rush and pressure the woman to 21 sign the documents quickly without reading them and engage in other deceptive, coercive, and 22 threatening behavior to secure their signatures as described below. The Court finds these putative 23 contracts invalid and unenforceable-part and parcel of Defendants' fraudulent scheme. 24 Defendants' representations are false. Contrary to their explicit promises that the videos will 25 never appear online, Defendants publish the videos on their paid subscription website and many 26 popular free "tube" sites such as Pornhub.com. They also use extensive affiliate marketing and 27 other techniques to maximize web traffic to their sites. Plaintiffs believe that Defendants increase 28 viewership of the videos by deliberately leaking and disseminating their true identities and personal -3- [PROPOSED] STATEMENT OF DECISION 1 information-including by sending the videos directly to the models' friends, family members, 2 classmates, employers, and social media contacts. This is similar to a direct-marketing promotional 3 device that makes the videos "go viral" in the models' communities. When the women inevitably 4 learn what Defendants have done with their videos, many complain to Defendants, begging them to 5 remove the videos from the internet. In response, Defendants usually simply ignore any such 6 messages and block the complaining model. 7 Defendants' tactics have caused the videos to become common knowledge in Plaintiffs' 8 communities and among their relations and peers-the very thing that Plaintiffs feared and that 9 Defendants expressly assured them would not happen. As a result, Plaintiffs have suffered and 10 continue to suffer far-reaching and often tragic consequences. Collectively, they have experienced 11 severe harassment, emotional and psychological trauma, and reputational harm; lost jobs, academic 12 and professional opportunities, and family and personal relationships; and had their lives derailed 13 and uprooted. They have become pariahs in their communities. Several Plaintiffs have become 14 suicidal. This Court finds that Plaintiffs' injuries are directly attributable to Defendants' fraudulent 15 scheme and that Defendants' conduct warrants both compensatory and punitive damages, as well as 16 equitable relief. 17 18 19 20 21 22 23 Defendants have sought to evade accountability for their actions by funneling the fruits of the enterprise to overseas companies. Defendant Michael Pratt declared bankruptcy. Accordingly, the Court determines that each of the Defendants are jointly and severally liable to the Plaintiffs here and issues appropriate relief, as set forth below. B. Defendants' Pornography Enterprise i. The Websites GirlsDoPorn.com ("GirlsDoPorn" or "GDP") is a pornography website featuring young 24 women, ages 18 to 23, engaging in intercourse with a male actor. GDP's female models have never 25 appeared in a pornographic video before and represent that they will not do so again. GDP 26 publishes exclusive content featuring young female models who cannot be seen elsewhere. (Ex. 27 28 -4- [PROPOSED] STATEMENT OF DECISION 1 1576.1 .) 1 Defendants recruit the women, produce the videos, and solely control the content that 2 appears on GirlsDoPorn.com, and it is undisputed that pornographic videos and photographs of all 3 Plaintiffs were published on GirlsDoPorn.com. GirlsDoPom earns money by selling subscriptions 4 to view the complete video content in the members-only section. As set forth below, the Court finds 5 that Defendants own or control the rights to the GirlsDoPom.com content, trademark, and domain 6 name. 7 GirlsDoToys.com ("GirlsDoToys" or "GDT") is a pornographic website featuring young 8 women in "solo" scenes (i.e., using sex toys). The women are usually the same as those who shoot 9 boy-girl GDP videos because Defendants do not separately recruit women for solo videos. 10 Defendants shoot, produce, edit, and publish the videos for GDT, and the website earns money 11 through subscription sales. Defendants control all aspects of the website. As explained below, the 12 Court finds that Defendants own or control the rights to the GirlsDoToys.com trademark and 13 domain name, as well as the content on the site. 14 MomPOV.com ("MomPOV") is a pornographic website featuring "mature" women over 30 15 engaging in sexual intercourse with a male actor who is holding the camera. Defendants recruit the 16 women, produce and edit the videos, and publish the videos on the website, which-like GDP- 17 earns revenue by selling subscriptions. Prior to February 2015, MomPOV was operated alongside 18 GirlsDoPorn and GirlsDoToys. Since February 2015, certain aspects ofMomPOV were shifted into 19 a separate entity created solely for that purpose. 20 21 ii. The Individual Defendants and their Agents Defendant Michael Pratt, originally from New Zealand, conceived the idea for 22 GirlsDoPorn.com in 2006 while he was living in Brisbane, Australia. (Deposition of Michael Pratt, 23 Volume I, December 6, 2018 ["Pratt Depo. Vol. I"] at 14:5- 15:6.) He moved to the United States 24 in 2007 and launched the website in 2009. (Deposition of Michael Pratt, Volume III, taken May 6, 25 2019 ["Pratt Depo. Vol. III"] at 152:18-153:6.) He has owned and operated GirlsDoPom through 26 27 28 GirlsDoPom' s channel on Pornhub advertising: "Real amateur girls having sex on video for the very first time... You will not find these girls on any other website - all girls are 100% exclusive - this is the only and only time they do porn." 1 -5- [PROPOSED] STATEMENT OF DECISION 1 a series of different entities through the years but has always maintained ultimate control of the 2 website as well as those individuals he hires to assist him in producing videos for his websites. 3 (Pratt Depo Vol. I, at 60:21-61 :4.) Pratt recruits models and has served as videographer, and then 4 edits and publishes the videos online himself. (Pratt Depo Vol. 1 at 64:7 - 11; 185:11-21; 208:4- 5 209:23). Pratt receives 100% of the profits made by GirlsDoPorn.com. (10/02/19 Trial Tr. 127:6- 6 10.) 7 Pratt also co-founded the website MomPOV.com with Douglas Wiederhold in 2010, 8 (Wiederhold Depo at 39:3-7, 124:19-22), and the website GirlsDoToys.com with Matthew 9 Wolfe in 2014. (10/3/19 Trial Tr. 110:19-22; Ex. 1052 [Letter oflntent].). Pratt was involved in 10 the recruitment of and/or served as the videographer for Jane Does 3, 4, 5, 9, 11, 13, 14, 15, 18, 19, 11 20, and 22. 2 As videographer, Pratt often presented documents to models to sign and answered any 12 questions they had surrounding the shoot. 13 Douglas Wiederhold (not a defendant) was hired by Pratt to serve as the male performer for 14 GirlsDoPorn videos in 2007. (Deposition of Douglas Wiederhold, taken July 17, 2018 15 ["Wiederhold Depo"] at 106:9 -22). In 2010, he and Pratt co-founded MomPOV.com. 16 (Wiederhold Depo at 39:3 - 7, 124: 19-22). Wiederhold also served as the male performer in 17 MomPOV videos and generally handled operations of the website since its inception. He stopped 18 shooting videos for GirlsDoPorn in or around 2012. (Id. at 49:25 - 50:5). Wiederhold did not 19 interact personally with any of the Plaintiffs. 20 Defendant Matthew Wolfe, a childhood friend of Pratt from New Zealand, joined Pratt in 21 the United States and began providing services for Pratt's pornography business in 2011. (10/2/19 22 Trial Tr. 9:6 -9.) Wolfe's duties include or have included payroll, bookkeeping, billing, technical 23 assistance, recruiting, and videography. (10/2/19 Trial Tr. 25:13 - 26:2, 134:7-8.) As 24 25 26 27 28 2 (I 0/01/19 Trial Tr. 9:5-10; 21: 14-16 (Jane Doe 3]; 8/28/19 Trial Tr. 83 :23-84:9 [Jane Doe 4]; 9/18/19 Trial Tr. 21:20-22:8 [Jane Doe 5]; 9/30/19 Trial Tr. 16:19-18:9 [Jane Doe 9]; 9/10/19 Trial Tr. 121:13-25 [Jane Doe 11]; 9/09/19 Trial Tr. 38:10-39:6 [Jane Doe 13]; 10/15/19 Trial Tr. 28:13-14; 52:17-21 [Jane Doe 14]; 8/20/19 Trial Tr. 20 I: 15-17; 202:2-18 [Jane Doe 15]; 9/24/19 Trial Tr. 11 :4-23 [Jane Doe 16]; (Deposition of Jane Doe 18, March 22, 2019 ["Doe 18 Depa."] 92:10-13 [Jane Doe 18]), 9/09/19 Trial Tr. 212:6-9 [Jane Doe 19]; 9/16/19 Trial Tr. 7:2-7, 12:3-9 [Jane Doe 20]; and Deposition of Jane Doe 22, January 22, 2019 ["Doe 22 Depo."] at 238:20-239:2 (Jane Doe 22].) -6[PROPOSED] STATEMENT OF DECISION 1 videographer, he often answered questions posed by models and presented documents to them to 2 sign. (Trial Tr. 08/22/19 at 37:24-38:4 and Deposition of Jane Doe21 taken on May 4, 2019 at 3 107:20 -111:19.) In2011, Wolfe and Pratt purchased the domain GirlsDoToys.com and Wolfe has 4 filmed many of the videos. (10/3/19 Trial Tr. 110:19-22.) He was produced as the PMQ for the 5 entities that run GirlsDoPom and GirlsDoToys in this case. (10/2/19 Trial Tr. 88: 1 -7.) In his 6 testimony, Pratt deferred to Wolfe as more knowledgeable on many issues relating to his 7 businesses. (Pratt Depo Vol. 1 at32:6 - 9). Wolfe was involved in the recruitment of and/or served 8 as videographer for Jane Does1, 2, 5, 7, 9,10, 12, 14 , 17, 21, and22.3 9 Defendant Andre Garcia was hired by Pratt to serve as the male talent and "casting 10 director" for GirlsDoPorn.com (Pratt Depo. Vol. I, 54:1-3.) Garcia earns a commission for each 11 model he recruits and is paid an hourly rate on top of those commissions. (Pratt Depo Vol. 3 at 12 151:8-11). As male talent, Garcia often presented the documents to models to sign and answered 13 questions they posed surrounding the shoot. (Trial Tr. 09/10/19 at 136:7 -16; 137: 18 -23; Trial Tr. 14 09/10/19 at 136:7-21.) Garcia is the male talent appearing in each of the Plaintiffs' videos and was 15 involved in the recruitment process of or otherwise made representations to Jane Does 1,2, 3, 4, 5, 16 6, 7 , 8, 10, 11, 12, 13, 14, 18 , 19, 20, and21.4 17 18 19 20 21 22 23 24 25 26 27 28 3 Jane Doe 1 (Trial Tr. 09/11/19 at 150:23-151 :7), Jane Doe 2 (Trial Tr. 09/25/19 at 52: 16-20; 62: 1317), Jane Doe 5 (Trial Tr. 09/18/19 at 27:2-8), Jane Doe 7 (Deposition of Jane Doe 7 Volume 2 taken on August 8, 2018 ["Jane Doe 7 Depo Vol.2"] at 253:20-22; 284:7-10), Jane Doe 9 (Trial Tr. 09/30/19 at 29:10-14), Jane Doe 10 (Trial Tr. 10/07/19 at 126:13-15), Jane Doe 12 (Trial Tr.08/22 at 35:13-22), Jane Doe 14 (Trial Tr. 10/15/19 at 89:6-12), Jane Doe 17 (Trial Tr. 08/29/19 at 182:15-21), Jane Doe 21 (Deposition of Jane Doe 21 taken on May 4, 2019 at 105:3-5), and Jane Doe 22 (Deposition of Jane Doe 22 taken on January 22, 2019 at 276:16-21). 4 JD 1 (Trial Tr.09/11/19 at 152:5-14), 2 (Trial Tr. 09/25/19 at 54:6-15), 3 (Trial Tr. 10/01/19 at 12:6-11), 4 (Trial Tr. 08/28/19 at 85: 19-86: 18), 5 (Trial Tr. 09/18/19 at 10: 11-17), 6 (Trial Tr. 08/27/19 at 23:5-7), 7 (Jane Doe 7 Depo Vol. 2 at 284:22-285:1), 8 (Deposition of Jane Doe 8 taken May 11, 2018 at 73: 11-20), 10 (Trial Tr. 10/07/19 at 112:26-113 :5, 11 (Trial Tr. 09/10/19 at 135:20-136:21), 12 (Trial Tr. 08/22/19 at 15: 15-18), I 3 (Trial Tr. 09/09/19 at 26:3-12), 14 (Trial Tr. 10/15/19 at 17:23-25), 18 (Deposition of Jane Doe 18 taken on March 22, 2019 at 132: 15-133:4), 19 (Trial Tr. 09/09/19 at 220: 17-221:8), 20 (Trial Tr.09/16/19 at 26:7-21), and 21 (Deposition of Jane Doe 21 taken May 4, 2019 at 48:22-49:4; 59:24-25). -7- [PROPOSED] STATEMENT OF DECISION 1 Theodore ("Teddy') Gyi worked as videographer for GirlsDoPorn and GirlsDoToys from 2 November 2015 through April or May 2017. (8/29/19 Trial Tr. 73:10-22.) As part of his job, Gyi 3 also assisted with chauffeuring women around San Diego and often presented documents to models 4 to sign and answered questions they posed surrounding the shoot. (Trial Tr. 8/21/19 at 84:1 - 14) 5 Wolfe and Pratt instructed Gyi on how to handle questions posed by models. (8/29/19 Trial Tr. 6 86:11-21). Gyi served as videographer for Jane Does 6, 8, 11, 13, 15, 18, 19, and 20. 5 7 Valorie Moser worked for Pratt as an administrative assistant from March 2015 until 2018. 8 (9/20/19 Trial Tr. 61:14-19.) She organized contracts, receipts, and expenses, and performed 9 QuickBooks and payroll. (Id at 62:24-63:4.) She also chauffeured models around San Diego and 10 helped get models prepared for their shoot. (Trial Tr. 9/20/19 at 77:3-23.) In or around 2018, Pratt 11 asked Moser to assist with recruiting certain women BLL Media had been unable to convince to 12 shoot a video. (Trial Tr. 09/23/19 at 93:9-23). Pratt instructed Moser on what to say and what not 13 to say when recruiting, and Moser took notes during that conversation. (Trial Tr. 09/20/19 at 89:15 14 - 91 :15). Moser did not interact personally with any of the Plaintiffs. 15 Kevin Holloway, a now-deceased attorney out of Wichita, Kansas, assisted Pratt in forming 16 the first entity that would eventually become the pornography enterprise at issue today. (Ex. 1660.1 17 [Articles oflncorporation for Clockwork Productions, Inc. filed November 29, 2006].) Holloway 18 also incorporated entities in Vanuatu on Pratt's behalf. (Pratt Depo. Vol. I, 243:12-15 [KH set up 19 BGF].) Pratt claims that Holloway owned of all of the videos produced for GirlsDoPorn and 20 GirlsDoToys by way of these Vanuatu entities, 6 but, for the reasons stated below, the Court finds 21 that Pratt owned and controlled these entities as well as the rights to the videos. 22 23 24 25 26 27 28 JD6 (Trial Tr. 8/27/19 at 58:21-23), 8 (Deposition of Jane Doe 8 taken May 11,2018 at 153:12-15, Trial Ex. 342.3), 11 (Trial Tr. 09/10/19 at 131:4-5), 13 (Trial Tr. 09/09/19 at 26:13-17), 15 (Trial Tr. 08/21/19 at 72:3-8), 18 (Deposition of Jane Doe 18 taken on March 22, 2019 at 130: 17-18), 19 (Trial Tr. 09/09/19 at 218:13-14), and 20 (Trial Tr. 09/16/19 at 70:3-9). 5 Pratt claims he struck a deal with Holloway in 2006, and that Holloway owns Oh Well Media Limited. (Pratt Depo. Vol. I, 62:7-9, 67: 1-9; 102:8 - 103:4; 117:19-119: 12 [explaining KH gave MP equipment, MP hasn't compensated him]; 271:7 - 277: 11 [MP transferred the rights to OWM because that's the way it was supposed to be].) -86 [PROPOSED] STATEMENT OF DECISION I Reference Models. Defendants hired reference models to assist with recruiting by 2 communicating with prospective models to assuage their objections and doubts about filming a 3 pornographic video. (Pratt Depo. Vol. II, 188:19 - 22.) Pratt, Wolfe, and/or Garcia instruct 4 reference models on what to say when they speak with prospective models. The reference models 5 who communicated with Plaintiffs in this case include Kailyn Wright, Amberlyn Nored Clark, 6 Alicia McKay, and Cat Wilkens. 7 Defendants hired other individuals to assist with their business operations, including Alex 8 Martinez who provided DMCA takedown services for the Websites (Deposition of Alejandro 9 Martinez taken on April 17, 2018 at 46:21 - 47:1); Alex Foster, who acts as a videographer for 10 GirlsDoPorn and "any other productions" the Defendants may shoot, including GirlsDoToys (Pratt 11 Depo Vol. I at 53: 16 - 25); Cameron Brown, who performed DMCA copyright removal services 12 for the company, like Mr. Martinez. (Pratt Depo Vol. I at 54:4 - 6); and Kevin Gibson who was a 13 porn producer working for GirlsDoPorn alongside Mr. Pratt from at least November 2016 until 14 October 2018 (Trial Tr. I 0/29/19 at 40:25 - 41: 12). Defendants hired Jamia McDonald, Kevin 15 Gibson's then-girlfriend, to repeatedly harass Plaintiffs' counsel with phone calls every day for 16 $300 a week. (Trial Tr. 10/29/19 at 47:24-48:16). None of these individuals personally interacted 17 with the Plaintiffs in this case. 18 19 iii. The Entities Defendants used more than a dozen entities to operate their three pornographic websites. 20 Defendants admit to owning, either directly or indirectly, some of the entities, including BLL 21 Media, Inc.; BLL Media Holdings, LLC; Domi Publications, LLC; MIM Media, Inc.; Merro 22 Media, Inc.; Merro Media Holdings, LLC; EG Publications, Inc.; UHD Productions, LLC; EBB 23 Marketing, Inc.; and Hay st Holdings, Limited. 24 Defendants deny holding an ownership interest in several other related entities, including 25 Clockwork Productions, Inc., Bubblegum Films, Inc., Oh Well Media, Ltd., Sidle Media Ltd., and 26 Torque Asset Management, LLC. In fact, these are the entities that, at one time or another, have 27 purported to hold the rights to the videos Defendants produce, the domain name of their websites, 28 -9- [PROPOSED! STATEMENT OF DECISION 1 and the trademark of their brands-the entirety of Defendants' assets. Each of these entities exists 2 under the laws of the Republic of Vanuatu-a tiny, remote island in the South Pacific. 3 The Court received no evidence of writings establishing the Vanuatu entities' separate and 4 independent status. The Court received no evidence of consideration paid to Defendants by these 5 entities in exchange for ownership rights to the videos and websites. Not only do Defendants claim 6 that they do not own these entities, but they claim to have no knowledge of the person who does 7 own them. 8 Taking into account each Party's ability to provide evidence (Cal. Code Evid. § 412; CACI 9 No. 203 [Party Having Power to Produce Better Evidence]) and noting the absence of evidence 10 supporting Defendants' theory, the Court finds: there are no contracts, no consideration, and no third- 11 party owners, known to Defendants, because Defendants themselves own these entities. 12 13 As explained in detail below, the evidence at trial supports a finding that all entities are a single business enterprise. Therefore, the Court treats them as one. Defendants' Deceptive and Unfair Business Practices 14 C. 15 Over the course of a 99-day trial, the Court heard from 22 Plaintiffs (live and by deposition) 16 who provided credible testimony. The Court also heard from seven non-plaintiff models who 17 testified about one of the most humiliating and devastating experiences of their young lives. 18 Plaintiffs further called four women Defendants hired as reference models; these witnesses 19 admitted to lying to prospective models such as the Plaintiffs in this action even though, by telling 20 the truth, they implicated themselves in a fraudulent scheme. Finally, Plaintiffs also called four of 21 Defendants' former employees, whose testimony, in part, corroborated that of the Plaintiffs. 22 In contrast, only one individual Defendant, Wolfe, appeared live, and he provided guarded, 23 and at times inconsistent testimony. Pratt, on the other hand, fled the country, ignoring a properly 24 served notice to appear and an arrest warrant issued by this Court, opting instead to testify by 25 deposition. In evaluating the evidence, the Court considers Defendants' failure to credibly explain 26 or deny Plaintiffs' evidence against them. (CACI No. 205.) 27 28 -10- [PROPOSED] STATEMENT OF DECISION 1 2 iv. Defendants Use Deceptive Recruiting Practices The success of Defendants' business turns on their ability to induce young women who 3 would not otherwise consider filming pornography to fly to San Diego and shoot a pornographic 4 video. Defendants' success in doing this is based on several practices: first, they drew women in 5 through bait-and-switch advertisements for clothed modeling; second, they offered enough money 6 to overcome the woman's general compunction against the idea of pornography; and third, they lied 7 about a significant concern the women have-where and how the video will be distributed and who 8 will be able to see it. Finally, by carefully concealing their own identities at every stage of the 9 recruiting process, Defendants severely curtail the women's ability to investigate the truth of these 10 misrepresentations, concealments, and to protect themselves against Defendants' fraudulent 11 scheme. 12 13 14 1. Defendants Post Misleading Craigslist Advertisements Which Direct Recruits to Their Websites Defendants post advertisements on Craigslist.com that purport to seek women for clothed 15 modeling work in towns and cities all over the United States and Canada. (10/2/19 Trial Tr. 120:2 - 16 14.) These facially benign ads offer to pay women ages 18 to 22 with little to no modeling 17 experience a large sum of money-typically around $5,000-for photo and/or video shoots. (E.g., 18 (8/27/19 Trial Tr. 12:3 -10) [JD 6]; (8/29/19 Trial Tr. 183:17- 21) [JD 17); (9/9/19 Trial Tr. 19 212:19-24) [JD 19).) The ads also direct prospective models to Defendant-owned modeling 20 websites such as www.BeginModeling.com, www.ModelingGigs.com, and 21 www.ModelingWorks.com, which also appear to advertise clothed modeling work. (Ex. 1543. I) 22 The websites contain an application form where prospective models can enter their names, ages, 23 height, weight, location and contact information and attach photographs. (Ex. 1543.1.) 24 Neither the Craigslist ads nor these websites contain any indication that nudity or 25 pornography is involved. (10/2/19 Trial Tr. 143:26-144:19 [Wolfe testifying this is because 26 Craigslist removes ads related to pornography].) Contrary to Defendants' explanation, the Court 27 finds that Defendants deliberately used deceptive advertisements and websites to mislead women 28 about the nature of the work; Defendants aimed to cast a wider net to attract a certain type of -11- [PROPOSED! STATEMENT OF DECISION 1 applicant-women who would not intentionally respond to a solicitation to appear in a 2 pornographic video. 7 This is consistent with Defendants' depiction of GDP models as making a 3 one-time-only stint into pornography. 4 Women can apply for the purported modeling work through Craigslist by email or the 5 application page on Defendants' modeling websites by submitting name, age, height, weight, 6 location, email address, phone number, and pictures. (Ex. 1543.1) If the applicant meets 7 Defendants' criteria, she will receive an email from Defendants. (I 0/2/19 Trial Tr. 120:25 - 28.) 2. Defendants Send Deceptive Emails Designed to get the Woman on 8 the Phone 9 10 Defendants use a few different stock emails to respond to applicants, but the one received 11 by most of the Plaintiffs in this case is the stock email from "Jonathan." (E.g., Exs. 4.1; 121.2; 151; 12 217; 276; 612.)8 This email does not contain the word pornography 9 but instead states "[t]his is a 13 legitimate adult gig for an established Southern California company." (Ibid.) 10 14 The stock email makes the "gig" sound fast, easy, and safe and begins assuaging women's 15 concerns right off the bat: "None of your personal information will be given out in the video or 16 afterwards, no names etc. are used in the video." (Ibid. [sic in original].) The email also represents, 17 "We have shot over 200+ models, you can speak or Skype with as many as you want and talk to 18 them about their experience with us." In reality, although Defendants have shot hundreds of 19 models, they only permit a prospective model to speak with a few select "references"-some of 20 whom are not actual previous GDP models but have been hired to give fraudulent testimonials. In 21 22 23 All Plaintiffs testified they would not consider responding to an ad for pornography. Most testified they did not consider even nude modeling. 24 277.) 25 Defendants instruct their employees not to use the word "pornography" or "porn." (9/23/19 Trial Tr. 225:21-25 [Valorie Moser explaining that Pratt suggested she use the word "adult video" as opposed to "pornography" in recruiting models]; Ex. 1695.54 ["adult video" hand-written at the top of the page.) 10 Some women find the term "adult gig" to be vague and believe it may refer to nude modeling as opposed to hardcore pornography. (Sept. 9, 2019 Trial Tr. 214:23-215:5 [Jane Doe 19 unsure whether the email meant porn or nude photo shoot].) Some do not learn the ad is for pornography until they arrive at the shoot. (Aug. 29, 2019 Trial Tr. 194: 12-195:8 [Jane Doe 17 believed this email referred to nude modeling].) 26 27 28 7 8 Defendants used a few other stock emails: one from "Mike" (Ex. 453.) and one from "Robb" (Ex. 9 -12- [PROPOSED] STATEMENT OF DECISION 1 any case, Defendants channel new recruits solely to particular references who have been instructed 2 and paid to present Defendants' false narrative. 3 Although some Plaintiffs responded to this first email, each Plaintiff testified that the idea of 4 filming a pornographic video triggered concerns about where the video would be distributed and 5 who would be able to see it. Plaintiffs were all aware of the existence and proliferation of internet 6 pornography but wanted to hear more about this particular offer because the email indicated that 7 their identities would be protected and suggested that the other women who had shot a video did not 8 regret it.(E.g., 10/1/19, Trial Tr. 13:10-17 [JD 3]; 9/10/19, Trial Tr. 120:3-5 [JD 11]; 8/22/19, 9 Trial Tr.18:5-20:19 [JD 12]; 9/24/19, Trial Tr. 12:10-14 [JD 16]; 9/16/19Trial Tr.12:14-22 1O [JD 20].) This job also offered notably high pay for what appeared to be very little work. 11 Many 11 Plaintiffs testified that, although they ordinarily would not consider doing pornography, this offer 12 was uniquely enticing. 13 If women do not respond to this initial email, Defendants do not give up. Instead, they send 14 a follow-up email sometimes increasing the amount of pay and offering clothed modeling and more 15 detailed assurances. (Exs. 278; 618; 810.) Some Plaintiffs responded to this email specifically 16 because of the offer to do clothed modeling. 12 (E.g., (8/21/19 Trial Tr. 18:16 - 19:12) [JD 15]; 17 (8/29/19 Trial Tr. 187:13 - 188:17) [JD 17].) In fact, clothed modeling has never been part of 18 Defendants' business. The Court finds that Defendants make this offer with no plan or intention to 19 fulfill it and include it in this email solely for the purpose of misleading women about the nature of 20 the job in order to elicit a response from those who would not otherwise respond. 21 22 Several Plaintiffs testified they found this second email particularly persuasive. It provides more details about the types of girls who have done a shoot: "All the girls that I shoot are first 23 24 25 26 27 28 Indeed, many Plaintiffs testified they were in precarious financial situations and although some admitted this pressure impacted their decisions, all steadfastly stated that even given theirfinancial situations they would not have done the video if they had known it would be widely published online and available in the United States. (See, e.g., Jane Doe 4, Jane Doe 5, Jane Doe 9, Jane Doe 19.) 12 The legitimacy of this offer is buttressed by the additional statement, "Clothes form [sic] BCBG and Bebe are provided by us and you can keep them." (Exs. 278 [JD 6]; 340 [JD 8]; 618 [JD 13]; 720 [JD15]; 810 [JD!7].) [JD 17 saying that she believed it because it included this statement about clothes ... we could maybe use (9/3/19 Trial Tr. 104:6-17).) -1311 [PROPOSED] STATEMENT OF DECISION I times. I shoot cheerleaders, sorority girls, preppy college girls, IG [Instagram] models with 70k 2 followers and models of that caliber." (Ibid) Several Plaintiffs testified that these representations 3 helped to lure them in because the type ofgirls described were relatable to them-Jane Doe 15 was 4 on her collegiate cheerleading team; Jane Doe 13 was in a sorority. Plaintiffs also interpreted this 5 statement to mean that these women (who led lives similar to their own) had not been negatively 6 impacted by shooting the videos and had continued to lead their normal lives. (E.g., (8/21/19 Trial 7 Tr. 23:22-24:2) [JD 15].) 8 The follow-up email also says, "We have over 50 models that you can speak or 9 Skype/Facetime with." Defendants even send pictures ofrecent models who look like ordinary IO women who are happy and safe. (Exs. 285; 618; 818.) Many Plaintiffs testified that these pictures 11 were relatable and made them more comfortable. (E.g., (8/22/19 Trial Tr. 22: 14 - 23: 1, 27:4 - 16) 12 [JD 12]; (10/15/19 Trial Tr. 75:2-14) [JD 14]; (Deposition of Jane Doe 22, January I, 2019 ["Jane 13 Doe 22 Depo."] at 152:4 - 7) [JD 22].) Defendants also send pictures of the hotel rooms, the sets, 14 camera equipment, and the male performers, which Plaintiffs testified improved their comfort level 15 because they felt that Defendants were being open and generous with information and because the 16 images looked professional and legitimate. (E.g., JD 6 [8/27/19 Trial Tr. 34:4- 10]; JD 14 17 [10/15/19 Trial Tr. 75:15-24].) 18 It should be noted that Defendants also present the experience as a glamorous opportunity to 19 travel to Southern California and enjoy expensive amenities they could not ordinarily afford. One 20 indicated that this depiction influenced her decision to respond to the ad [noting that it sounded fun 21 to be "treated like a celebrity for a day"].) Other Plaintiffs testified that these representations 22 assisted in convincing them that Defendants ran a legitimate, professional operation. (E.g., JDs 6, 23 17). 24 3. Defendants Falsely Promise More Pay than they Intend to Provide -25 The Court also finds that it is Defendants' business practice and strategy to offer as much 26 money as needed to entice a recruit to San Diego for a shoot, but sometimes with no intention of 27 actually following through. This often involved increasing the offers until a candidate agreed. For 28 example, Valorie Moser testified that Pratt instructed her to "[m]ake an offer of a price that was -14- [PROPOSED] STATEMENT OF DECISION I high enough to get the model on a plane." (9/20/19 Trial Tr. 115:15-24 ["high-balled" or 2 "exaggerated" amounts were frequently quoted].) Defendants used this strategy with multiple 3 Plaintiffs. (E.g. Jane Doe 6, JD 8, JD 10, JD 15, JD 16, JD 21.) Jane Doe 6, in particular, did not 4 reply to Jonathan's email until he increased the offer from $5,000 for two videos to $7,000 for one 5 video. She testified that she would not have agreed to accept any less. (8/27/19 Trial Tr. 172:2- 6 174:2.) 7 Defendants sometimes do not honor their promises regarding pay. Once a model has arrived 8 at the hotel room in San Diego and has stripped down to begin filming, Defendants at times use a 9 pretext (a supposed flaw in her appearance) to pay her less than the agreed-to amount. 13 (E.g. Jane 10 Does 10, 12, 13, 15, 19 and 20.) Defendants have never previously informed the model that her pay 11 is not fixed but is contingent and subject to change. Some Plaintiffs would not have agreed to the 12 videos had they known that Defendants claimed the unilateral discretion to slash their pay, often by 13 thousands of dollars. However, by the time models have arrived in San Diego and filming is about 14 to begin, they have no choice but to relent and proceed with the shoot. Defendants threaten them 15 with consequences if they do not do so. 16 17 The Court finds that Defendants deliberately mislead some models by increasing or overstating the amount of pay offered with little intention to fulfill that promise. 14 4. Defendants Misrepresent Facts and Make False Assurances on the 18 19 Phone 20 Defendants' goal is to initiate a phone call with a prospective model as quickly as possible. 21 (Exs. 277 [JD6); 510 [JD 12]; 621 [JD 13); 714 [JD 15); 944 [JD 21); 994 [JD 22).) When a model 22 23 24 25 26 27 28 13 This is often accompanied by cruel or cutting commentary which humiliates the models. Defendants' conduct is illustrated by the testimony of Jane Doe A, a third-party model who was recruited and shot her video during trial. (10/31/19 Trial Tr. 41 :9-15, 42: 11-24, 46:5-16, 55:1-20, 98: 12-14.) Jonathan (Garcia) first offered her $6,000 for a boy-girl shoot and $2,000 for a solo shoot and slowly raised the amount until he had offered her $10,000--$6,000 for the boy-girl shoot and $4,000 for the solo. (10/31/19 Trial Tr. 127:28-129:2.) Defendants had already shut down the website where solo videos are posted, GirlsDoToys, and stopped filming such videos. (I 0/7/19 Trial Tr. 38:8-18; 11/25/19 Trial Tr. 177:19.) Garcia augmented Defendants' offer for the part of the shoot that he knew would not occur. Jane Doe A was not given a chance to shoot the solo scene when she traveled to San Diego and received $6,000 instead of the promised $10,000. (10/31/19 Trial Tr.129:3-6, 61:23-26.) -1514 [PROPOSED] STATEMENT OF DECISION I asks questions by email or text, Defendants answer some questions in writing, 15 but if a prospective 2 model asks about where the video will be distributed, Defendants always ask to discuss it over the 3 phone. (Exs. 9.1 (JD!]; 218 (JD5]; 371.1-2, 372.7 [JD 9]; 725 [JD15]; 779.2 [JD 16].) The Court 4 finds that Defendants deliberately avoid written communications about distribution with 5 prospective models because Defendants misrepresent where and how the videos will be distributed. 6 Defendants produced no written communications to the contrary. (CACI 203, 205.) 7 Based on consistent testimony at trial, the Court finds that, during the initial phone call 8 between Defendants and prospective models, Defendants assure the women that the video will 9 never be seen by anyone they know because it will only be distributed on DVD in a foreign IO country; it thus will never be available in the United States, and it will never be published online. 11 While the details of Defendants' representations varied slightly, 16 the part of the message that 12 mattered to the prospective models remained the same-"it's not going online and no one in the 13 United States will find out." The specific destination represented simply made these material 14 representations credible and believable to Plaintiffs. 15 Every Plaintiffs' significant concern ( aside from her physical safety) was where the video 16 would be distributed and who would be able to see it. Nearly every Plaintiff asked questions and 17 expressed her concerns about distribution during the phone calls with Defendants. Some Plaintiffs 18 testified they did not have a chance or need to ask questions because Defendants told them what 19 they wanted to know as soon as they got on the phone. (E.g., JD 22 [Jane Doe 22 Depo. 150:12- 20 151:18].) Some explained their particular situations and reasons that they were concerned about 21 distribution of the video. (JD I [9/11/19 Trial Tr. 157:14- 19], JD 9 [9/30/19 Trial Tr. 15:17 -25], 22 JD 12 [8/22/19 Trial Tr. 20:20 - 21 :3], JD 15 [8/21/19 Trial Tr. 23:8 - 13].) Defendants assured 23 each woman that they had done this many times before and the videos had never appeared online 24 25 26 27 28 15 (E.g., Ex. 875.1-2 [JD 19 asking about the male talent]; Ex. 511 [JD 12 asking about models that have filmed with the company].) 16 Sometimes Defendants said the DVD would be sent to a single "private collector" in Australia (JD!, JDS, JOJO, JD19), sold exclusively in Australia (JD4, JD6, JD7, JD9, JD! I, JD12, JD! 7, JD20), New Zealand (JD16), Australia and New Zealand (JD 22), South America (JD 3), Australia and South America (JD 18), the UK (JDl5), "overseas" (JD2, JD8), or "to men on fishing boats overseas" (JD14), to "exclusive members with paid subscriptions" (JD13), or "to a small overseas audience (JD21). -16- [PROPOSED] STATEMENT OF DECISION 1 and no one in the United States had ever found out. As set forth in the Court's findings regarding 2 the individual Plaintiffs (see below), Defendants had a ready answer for any questions asked. (See, 3 e.g., (9/18/19 Trial Tr. 13:8 -16) [JD 5] [Defendants said the private collector signed a contract 4 that he would not redistribute DVD]; (10/16/19 Trial Tr. 49:2-11) [JD 14] [Defendants said the 5 DVD was encrypted and could not be copied]; (8/26/19 Trial Tr. 181: 19 - 25) [JD 15] [Defendants 6 said that if the video did somehow end up online, they had ways of taking it down].) A truthful 7 answer to questions about distribution would have upset Defendants' scheme by revealing the true 8 nature of the enterprise. 9 Nor was there any particular act of diligence that would have revealed the truth to Plaintiffs 10 and other women ensnared in Defendants' scheme. Defendants' use of aliases and other business 11 names and websites ensured that a prospective model who checked Defendants' reputations on the 12 internet would not learn that they owned and operated a popular website called GirlsDoPorn and 13 that their videos were strewn across dozens of other websites. 17 14 Defendants argued that Plaintiffs did not do their due diligence because they did not obtain 15 an explanation for how Defendants could guarantee that a video (once distributed in any medium) 16 would not be uploaded onto the internet. However, Defendants' scheme was remarkably successful 17 for a reason, and the sheer number of GDP models-numbering in the hundreds-attests to its 18 effectiveness. Plaintiffs were young individuals with no experience in the pornography industry. 19 Defendants, on the other hand, were significantly older and held themselves out as experienced 20 professionals with knowledge of how the videos would actually be distributed and who would 21 actually have access to them. Plaintiffs asked Defendants extensive questions regarding their 22 concerns, and Defendants provided answers that placated those concerns and, to a person of 23 24 25 26 27 28 This point is driven home by the testimony of third-party model B.F. who testified that she spent hours researching BeginModeling.com before agreeing to appear in the video. (9/24/2019 Trial Tr. 208:2209:3.) Deep in the internet, she found a story from a woman that sounded similar to what Defendants had told her. (Id. at 209: 11 - 17.) B.F. immediately texted Jonathan and asked him outright whether he had anything to do with GirlsDoPorn. (Id. at 209:19-23.) Jonathan, who first asked to speak with her on the phone, denied the allegation, saying: "'No. We know who that company is. That's not us. Your video would only be going on DVDs to Australia. It's not going to be online. It's not going to be in the US."' (Id. at 209:24 - 210:2, 212: 11 - 18.) He then provided her with contact information for three reference models who backed up his story. (Id. at 212:21 -213:13.) 17 -17- [PROPOSED] STATEMENT OF DECISION 1 Plaintiffs' age, education, and experience, seemed quite reasonable. Plaintiffs had no ability to 2 independently verify the information Defendants provided and little reason to do so. The record 3 establishes that Plaintiffs relied upon Defendants' assurances, as Defendants knew and hoped they 4 would. 5 Defendants affirmatively stated in no uncertain terms that they would not distribute the 6 videos via the internet, but would target them exclusively for very limited DVD production in 7 overseas locales. They then proceeded to do exactly the opposite, guaranteeing that the videos 8 would be widely published on the internet and disseminated in Plaintiffs' communities. What might 9 have conceivably transpired ifthe videos had instead been sold to a single private collector in 10 11 Australia, for instance, is beside the point. Defendants are persistent in their recruiting efforts. Several Plaintiffs testified that 12 Defendants called and texted them multiple times a day every day. Jane Doe 20, for example, 13 agreed to do the shoot and booked a flight, then got cold feet and backed out. She testified that Pratt 14 called and texted her, comforted and convinced her until she finally relented. (09/16/19 Trial Tr. 15 19:16-27)[JD 20]. 16 Defendants also use other means ofcommunication to convince women to trust and believe 17 them. Defendants offer to Facetime or Skype with women while they are at another shoot to show 18 them around the set, introduce them to the model being filmed, and let them see the atmosphere. 19 (JD 6 (8/27/19 Trial Tr. 44:23 -45:3); JD 15 (8/21/19 Trial Tr. 62:14- 63:13); JD 20 (9/16/19 20 Trial Tr. 16: 16 -17:5).) Several Plaintiffs testified that this communication made them more 21 comfortable and increased their trust in Defendants; Jane Doe 6 testified that the photos Defendants 22 sent ofmoney, previous models, and the hotel rooms "looked like everything they were promising 23 [her]," (08/27/19 Trial Tr. 34:4- 10). 24 25 26 5. Defendants Pay Reference Models to Repeat their Fraudulent Misrepresentations One of Defendants' most effective recruitment techniques was the use ofreference models 27 to speak to prospective models and bolster Defendants' misrepresentations. Knowing that their own 28 assurances would only take them so far, Defendants hired women to speak with prospective models -18- [PROPOSED] STATEMENT OF DECISION 1 and provide a so-called "first-hand" account of their experience working with Defendants. (See 2 9/20/19 Trial Tr. 95: 13 - 96:3 [Pratt asked Moser to assist in recruiting women with whom he had 3 been unsuccessful because he thought "they would be more responsive to a female voice"].) In 4 reality, this is yet another deception. 5 As mentioned above, Defendants state in their very first email to prospective models that 6 there are hundreds of women who have shot videos with Defendants and would be happy to share 7 their experiences. (Ex. 276.1.) Defendants typically mention the references again on the phone and 8 then put the prospective model in touch with at least one reference. 9 Defendants use three types of reference women. The first type consist of women who have 10 recently shot a video with Defendants and have not yet learned that the videos are released online. 11 The second type consists of prior models who are in fact aware that the videos are published online. 12 The third type consists of women who have never actually shot a video with Defendants but who 13 are paid to say that they have. Reference women from each category testified at trial. 14 Amberlyn Clark was friends with Andre Garcia when he asked her to act as a reference to 15 assist him in recruiting models in or around 2016. (8/20/19 Trial Tr. 147:10 -16; 148:19-25.) 16 Clark knew Garcia was an actor and recruiter for GirlsDoPom.com when she agreed to act as a 17 reference. (Id at 149: 1 - 13.) She has never filmed a video with Defendants. (Id at 151 :9 - 15.) 18 Clark testified that Garcia instructed her to tell prospective models that the videos "wouldn't 19 be put online and that they would go to private collectors" located "[o]utside of the U.S." (Id at 20 150:4-25.) He also instructed her to assure models that "no one would find out." (Id. at 158:2- 7.) 21 Clark admitted to acting as a reference for 'just a handful" of women and that she was compensated 22 based upon Defendants' attractiveness rating for each woman. (Id. at 157:1 - 5; 158:9-21.) Clark 23 acted as a reference for at least two Plaintiffs, Jane Does 6 and 15. 24 25 Kailyn Wright was an unsuspecting reference at first but continued acting as a reference even after she learned the truth. 18 (Deposition ofKailyn Wright, May 13, 2019 ["Wright Depo."] at 26 27 28 Before she became a reference model, she testified that she shot a video with Defendants after seeking assurances that the video would not be published online and that she would not have agreed to shoot the video if she had known it would be released on websites such as Pornhub. (Wright Depo. 41 :9-42:04.) -1918 [PROPOSED] STATEMENT OF DECISION 1 22:16-23:1.) She testified that Defendants paid her to talk to potential models and "make them 2 feel comfortable and like, reassure them, like, it was fine and legit." (Id. at 14:5-8.) Defendants 3 instructed Wright that, if a prospective model asked her where the videos would go, "to tell them it 4 would not be going online and that it was going overseas to wealthier countries." (Id. at 15:20- 5 16:3.) When asked why she told women that their videos would not be released online when she 6 knew that this was not true, she stated, "Because that's what they told me to say. That's what they 7 were paying me to say." (Id. at 23:4- 10.) 8 Wright testified that when she was recruiting models for Defendants, she had a text message 9 saved on her phone that she would send to the women. (Id. at 35:8 - 11.) She identified Exhibit 10 745, produced by Jane Doe 15, as the text message she sent to prospective models. (Id. at 37:9- 11 15.) Wright was a reference for several Plaintiffs, including Jane Does 1, 15, 17, and 21. 19 12 Taylor Rodgers also acted as a reference for prospective models, but she did so only prior to 13 learning that her video had been posted online. (Deposition of Taylor Rodgers, April 13, 2019 14 ["Rodgers Depo."] at 33:12-34:02.) Rodgers shot two videos with Defendants based on Pratt's 15 assurances that the video would "absolutely not" be online and was "only going to be distributed in 16 Australia to some rich guy." (Id. at 22:7 - 23:6.) Prior to shooting the video, she received 3 to 4 17 references from Pratt and spoke with each one. (Id. at 16:10-17:13.) 18 After she filmed her first video, Pratt and Garcia offered to pay her to speak with 19 prospective models and she agreed because, at that time, she believed that Defendants had told her 20 the truth. (Id. at 33:19-34:13.) Pratt texted her "examples of what to say" and she "knew from 21 talking to girls prior you're just trying to make the girl feel comfortable." (Id. at 34:6-16.) As 22 instructed (and as she believed to be true), Rodgers told between five and seven women that "the 23 videos would not be distributed anywhere except for to DVD to a guy in Australia." (Id. at 33: 12- 24 15; 36:24-37:6.) One of the prospective models she spoke to was Jane Doe 12. 25 26 Rodgers shot a second video before learning her first video was online. (Id. at 40:1241 : 11.) After she learned that her video was online, Rodgers was "upset" that she had encouraged 27 28 19 Defendants' financial records show 56 payments to Wright from May 18, 2015 until February 3, 2016. (Ex. 1677.433-.842.) -20- [PROPOSED] STATEMENT OF DECISION I women to shoot a video based on what turned out to be false information and stopped acting as a 2 reference. (Id. at 49:14-17.) 20 3 Alicia McKay, another woman who shot a video with Defendants based on the same false 4 statements, agreed to be a reference because she believed what they told her about distribution was 5 true. (Deposition of Alicia McKay, Volume I, November 13, 2018 ["McKay Depo. Vol. I"] at 53:8 6 - 54:14.)21 After she learned that the video was online, Pratt asked her to continue as a reference. 7 (Id. at 63:20-64:7.) She asked what she was supposed to say when someone asked about 8 distribution. Defendants instructed that she could be evasive and direct the prospective model to 9 Garcia. (Id. at 65: 13 - 67: 17; 76:11 - 77:6.) A recording McKay made of her phone call with IO Garcia was played during trial. Garcia told her to talk to prospective models on the phone rather 11 than by text. (72:3 -13.) He said that she did not have to answer a lot of questions; she should just 12 tell them "one, you're going to get paid; two, everything's paid for; three, it's legit - - you know, 13 it's not a bunch of weirds, anything like that, and that's it." (72:19-73:2.) If the women ask about 14 where the video will go, "just try to get her on the phone" and explain that there are three different 15 brands and "it depends on which ones you're doing .... don't ever use any names or anything like 16 that because we[... ] don't want to, you know, make it seem worse than it is." (73:4- 73:17.) 17 McKay acted as a reference for Jane Doe 6. 22 18 Several Plaintiffs testified that they were eager to speak to the reference(s), asked pointed 19 questions about distribution, and likely would not have filmed their video if the references had not 20 confirmed Defendants' representations about distribution. (JD I, 5, 6, 12, 15, 20, 21, 22.) Some 21 Plaintiffs stated that communicating with the references increased their trust in Defendants and 22 23 24 25 26 27 28 Defendants' suggest that Rodgers' testimony is less than credible because she appeared in multiple pornographic videos after learning her video was online. Rodgers credibly testified as to the impact of Defendants' conduct on her life as well as her lack of personal incentive to testify. 20 Like Rodgers, after she learned the first video was online, McKay decided to do another because "I figured at that point I was kind of, for lack of a - - I was screwed at that point, for lack of a better word, and I didn't get the full compensation of funds, so I figured, you know what, it's leaked. I'm getting blown up by friends and family, so I might as well go and do it." (McKay Depa. 62: 12 - 21.) 21 22 Defendants suggest that McKay is not credible because she has engaged in certain types of sex work such as escorting, exotic dancing, and "caroming." (McKay Depa. 113: 14 - 114:20.) The Court disagrees. McKay was forthcoming in her testimony and voluntarily made numerous statements contrary to her interests. -21- [PROPOSED] STATEMENT OF DECISION I solidified their decision to shoot the video. (JD 2, 3, 11, 13, 14, 16, 17, 18, 19.) A few Plaintiffs 2 were given or offered references but did not contact the references for a variety of reasons, but all 3 stated that just being offered the references made Defendants' statements seem supported and 4 legitimate.23 5 Defendants' methods of inducing women to believe their representations about the limited 6 scope of distribution has been honed over nearly a decade. Prior to hiring reference women to 7 cajole prospective models, Defendants directed women to a website called Bubblegumcasting.com 8 where they could view testimonial videos of young women praising their experiences working with 9 Defendants. While some Plaintiffs required more convincing than others, all Plaintiffs ultimately 10 11 believed Defendants' promises about limited distribution of the videos. Defendants push women to make a decision quickly. Several Plaintiffs recalled Jonathan 12 pressuring them to let him book a flight to San Diego within the first few days, assuring them that 13 they could always change their flight or cancel it. (E.g., 08/21/19 Trial Tr. 25:19-24 [Before Jane 14 Doe 15 got off her first phone call with Garcia, he already booked her hotel and flight]. See also 15 10/15/19 Trial Tr. [Jane Doe 14 testified that she had not committed to the gig when Garcia booked 16 her flight].) Several Plaintiffs testified that they still had not made up their minds at the time their 17 flights were purchased. Still in their home state, hundreds or thousands of miles away from 18 Defendants, some Plaintiffs felt they had not made a commitment and could still decide against 19 shooting the video up until the time that they boarded the plane to San Diego. All Plaintiffs who 20 flew boarded the plane in reliance on Defendants' assurances. 21 22 23 24 ii. Once the Women Arrive in San Diego, Defendants Give them No Opportunity to Learn the Truth and Little Choice in Completing the Shoot Upon arriving in San Diego, women are picked up from the airport by one or more of the Defendants or one of their employees, such as videographer Theodore "Teddy" Gyi or makeup 25 26 27 28 23 Jane Doe 4 "didn't want anyone else to know that [she] was doing it." (08/28/19 Trial Tr. 88: 1516.) Jane Doe 8 believed Defendants given "they were providing the references and ... all of this information." (Deposition of Jane Doe 8, May 11, 2018 ["Jane Doe 8 Depo."] at 79:19-20.) Jane Doe 9 did not call because she did not think the Defendants "were going to give [her] someone to call and ... have negative things to say about the experience." (9/30/19 Trial Tr. 140: 1-3 .) -22- !PROPOSED] STATEMENT OF DECISION 1 artist Riva Yousif. Defendants and their employees are friendly and make the woman feel 2 comfortable. (Jane Doe 3 testified that her "fight or flight system" calmed down after talking to 3 Pratt and Garcia in the car to the hotel, 2019/10/01 Trial Tr. 20:19-27; Jane Doe 6 depicted Riva 4 as a "motherly figure," 2019/08/19 Trial Tr. 49:8-9.) Sometimes they go straight to the hotel to 5 check the woman in; other times, they take the woman shopping or out to eat. Sometimes they go to 6 one of the Defendants' apartments to socialize before the shoot. 7 Many women continued to ask questions to confirm what they were told over the phone; 8 they receive the same answers and assurances, often from a different person than they spoke with 9 on the phone. Other women were already fully convinced by Defendants' representations and did 10 not feela need to ask further questions. Defendants' employees know how to answer questions 11 about distribution: they should confirm the video will not be online, they should never mention 12 GirlsDoPorn.com, and they should reassure models that everything will be fine. (08/29/19 Trial Tr. 13 86:3 -9 [Teddy Gyi testified that he "was told to tell [women] that there was no videos [sic] posted 14 online"]. 09/20/19 Trial Tr. 68: 18 - 22; 170:14 - 171:3 [Val Moser testified that she "was asked to" 15 sign an NDA; Moser also testified that Michael Pratt instructed her not to disclose distribution to 16 models per her NDA].) The Court finds that Pratt, Wolfe, and Garcia all knowingly gave false 17 information to multiple Plaintiffs in San Diego. Gyi and Yousif also participated in the scheme by 18 misrepresenting or concealing facts as instructed by Defendants. 19 The shoots take place in a hotel room (often the same hotel room where the model stayed or 20 will stay) in San Diego, either that day or the following. In the hotel room, the videographer (Pratt, 21 Wolfe, or Gyi) sets up the lights and camera equipment, and the model's hair and makeup are done 22 by a professional makeup artist (usually Yousif). Some women reported a pleasant, relaxed 23 atmosphere in the hotel room prior to the shoot. Typically, everyone engaged in small talk; if the 24 model posed further questions about distribution of the videos, Defendants continued to answer 25 with the same responses. 26 1. Defendants Offer Women Drugs and/or Alcohol Before the Shoot 27 More often than not, Garcia offers alcohol and/or marijuana to the model, regardless of her 28 age, before the shoot and encourages her to drink or smoke in order to calm her nerves and loosen -23- [PROPOSED] STATEMENT OF DECISION 1 up. Approximately half of the Plaintiffs accepted the offer and six Plaintiffs reported feeling 2 significantly intoxicated prior to the shoot. 3 Of the 28 models who testified at trial, Defendants offered alcohol or marijuana to 7 who 4 were underage. This includes McKay, who was 19 years old when Garcia offered her alcohol and 5 marijuana prior to the shoot. (McKay Depo. 23 :24 - 24: 15; 42: 17 - 22; 50:3 - 14.) 6 Only Jane Does 4 and 16 claim that they were so thoroughly intoxicated that they cannot 7 recall portions of the evening during which the videos were shot. Both show signs of intoxication in 8 their videos. Jane Does I, 8, 15, 17, and 18 testified that they felt moderate symptoms of 9 intoxication. For most of the Plaintiffs, the alcohol or marijuana served to diminish their defenses IO and make them less alert. 24 11 12 2. Defendants Attempt to Show Apparent Consent Defendants are aware of the fact that women who agree to shoot a pornographic video based 13 on the promise that it will not be published online will be very upset when Defendants post the 14 video online. In preparation, Defendants had Plaintiffs sign documents just before the filming 15 occurred. 16 17 a. Defendants Surprise Women with Documents to Sign Moments Before the Shoot 18 Just before filming, Defendants present women with at least one document to sign. 19 Defendants do not provide the documents to the model before she arrives at the shoot-even if she 20 asks whether there are any papers to sign-and purposely wait until minutes before the shoot begins 21 to inform the model that she is expected to sign documents immediately so that filming can begin. 22 (E.g., Jane Doe 5 emailed Garcia asking "Is there any contracting involved," which was ignored, 23 09/18/19 Trial Tr. 12: 1 - 13: 19. Jane Doe 5 testified that she did not know she would be handed 24 documents until right before filming, Id. 22:9- 21.) This delay is not for lack of opportunity. 25 Many women testified that they spent hours with Defendants and their employees (eating, driving 26 27 28 24 Defense expert Dr. Mark Kalish testified that when he reviewed Plaintiffs' videos, he did not see visible indicators of intoxication. But most of the Plaintiffs did not claim to be so severely intoxicated that one would necessarily observe such symptoms. -24- [PROPOSED! STATEMENT OF DECISION 1 around, shopping, or socializing in the hotel room or one of the Defendants' apartments) prior to 2 Defendants' presenting the documents for them to sign. (E.g., 08/27/19 Trial Tr. 49:22 - 50:4; 51 :3 3 - 8; 54:4 - 8; 54:16 - 56:20 [Yousif drove Jane Doe 6 around San Diego, purchased her food, and 4 dropped her off at her hotel. After spending a night there, she spent time socializing inGarcia's 5 apartment with another model and then played video games there. Next, Jane Doe 6 went shopping 6 with Yousif, returned to Garcia's apartment, got her hair and makeup done, took nude photographs, 7 then went to the hotel to film].) By the time the documents are presented, many women have 8 consumed alcohol and/or marijuana at Defendants' behest; Defendants urge them to do so in order 9 to relax, lower their inhibitions, and enable them to go through with the shoot. 10 Although Defendants testified to the contrary, the credible evidence at trial indicated that 11 they do not permit women much uninterrupted time to read or review the documents before signing 12 them. Defendants consistently discourage the models from reading, and they rush and/or distract 13 the models while they are completing the documents. (Jane Does I, 2, 3, 5, 7, 8, 9,11, 12, 13, 14, 14 15, 16, 17, 18, 19,20,21,22.) Some women testified thatGarcia, Wolfe,and/orPratt became 15 irritable and aggressive when they asked questions about the documents or requested time to read 16 them. Others testified that they were badgered to sign hastily and did not feel that they had the 17 option of asking for more time. The Court finds that Defendants used these tactics to reduce the 18 likelihood that women would read and understand what they were signing. 19 When handing the documents to a model, the Defendants briefly explain the purpose and 20 content of what she is being asked to sign. These representations are false and designed to induce 21 the women to sign without further question. In some instances, Defendants actually tell the model 22 that the documents state that the video will not be released online or in the United States and that 23 her name and privacy will be fully protected. Sometimes, Defendants represent that the documents 24 were "just to prove that [she is] 18," (08/28/19 Trial Tr. 93:9), or to show Defendants were "not 25 forcing [her] to do this," (09/10/19 Trial Tr. 136:14). In other instances, Defendants are vague, 26 saying, "This is just about the basic agreements, everything we spoke about," (09/09/19 Trial Tr. 27 51 :4 - 5), or 'Just kind of a formality." (08/22/19 Trial Tr. 37:16.) 28 -25- [PROPOSED] STATEMENT OF DECISION I Defendants know that these representations about the documents are false. They are 2 designed to build on and reinforce Defendants' prior statements and promises that the videos would 3 not be released online, would only be on DVD overseas, and would never be seen by anyone in 4 America. The Court finds that these representations are deliberate efforts to deceive models about 5 the content and purpose of the documents in order to induce the women to sign. By presenting the 6 documents as consonant with and merely memorializing previous conversations and agreements, 7 Defendants also seek to prevent models from recognizing that these are critical legal documents by 8 which they will be purporting to give up their rights for the first time. 9 These false representations are effective because, even if read carefully, the documents 10 themselves do not directly contradict Defendants' specific, express promises about how the videos 11 will be used; they do not clearly indicate that the videos will be published online on 12 GirlsDoPorn.com (which is never identified), as well as dozens of free tube sites, and marketed 13 broadly on affiliate websites. Instead, the documents contain broad, vague releases couched in 14 disorganized, complicated legalese. In essence, upon presenting the documents, Defendants profess 15 to be cutting through the dense legal language and explaining its purported practical import and 16 effect: It means only that Defendants will sell the videos on DVD to overseas clients-as they have 17 repeatedly stated and agreed. 18 The "Artists Agreement and Release 2257 Declaration" ("2257 Declaration") is a document 19 containing the model's name, date of birth, and driver's license or passport information that federal 20 law requires both the "model" and the "producer" to sign under penalty of perj ury after the 21 producer examines the picture identification of the model to ensure that the model is over the age of 22 eighteen. All Plaintiffs signed a 2257 Declaration for each of their videos. 23 On the reverse side of the 2257 Declaration is the Model/Talent Release,25 a one-page 24 document containing seven paragraphs of small font with no portions highlighted or set off from the 25 26 27 28 All Plaintiffs signed the 2257 Declaration and the Model/Talent Release. Some Plaintiffs signed an additional document. 25 -26- [PROPOSED] STATEMENT OF DECISION I rest of the text in any way to signal importance. The very first sentence of the document contains 2 140 words ofprolix legalese: 3 4 5 6 7 8 9 10 11 For and in consideration ofmy engagement as a model by Clockwork Productions Inc on behalfof BLL Media Inc., hereafter referred to as the photographer, on terms or fee hereafter stated, I hereby give the photographer, his legal representatives and assigns, those for whom the photographer is acting, and those acting with his permission, or his employees, the right and permission to copyright and/or use, reuse and/or publish and republish videos, films, photographs, pictures or portraits of me, or in which I may be distorted in character, or form, in conjunction with my own fictitious name, on reproduction thereof in color, or black and white made through any media by the photographer at his studio, or elsewhere, for any purposes whatsoever, including the right to sub license such rights; including the use of any printed matter in conjunction therewith. 12 (E.g., Ex. 633.) This sentence is a grammatical labyrinth, which misspells the names ofboth 13 entities, and expressly grants many rights that Defendants have never used or ever considered 14 using. For example, the sentence specifically covers "photographs, pictures or portraits," 15 reproductions "in black and white," and "printed material." It does not, however, mention 16 GirlsDoPorn.com, nor the words "internet," "online," or "website." It is thus designed to obscure 17 what will actually be done with the videos and to encourage continued reliance on Defendants' 18 repeated representations, promises, and testimonials from hired "references." 19 20 21 22 23 24 25 26 Paragraph 3 contains another sentence that Defendants rely upon to support their claim that the models consented to online distribution: You and your subsidiaries, successors, licensees and assignees may copyright, use and reuse, publish distribute, edit, excerpt, exhibit and otherwise exploit my name real or fictitious or any other name provided and created by Clockwork Productions Inc on behalf of BLL Media Inc, likeness, performance, voice, pictures, and statements, including those of me nude or semi-nude (collectively, my "Appearance"), for any and all uses, in whole or in part, in any and all media and manners, for the Program or any other program, throughout the world in perpetuity, without limitations, including in connection with the advertising, exploitation and publicizing of the Program or any other program. 27 (Ex. 633.) Defendants point to the phrase "... in any and all media ... throughout the world in 28 perpetuity ..." to show that Plaintiffs should have known where the video would be published. But -27[PROPOSED] STATEMENT OF DECISION 1 rather than conveying useful information to the model, this sentence merely obscures the true nature 2 and character of where the video will be distributed. 3 4 5 6 7 Finally, Defendants argue that the text of the Model/Talent Release precludes the claims now before the Court, based upon the following: I hereby release and discharge you and your successors, licensees and assignees, from any and all claims, demands, or causes of action that I may have, whether for libel, violation of my right of privacy or publicity, or any other matter arising out of or in any manner connected with use of my Appearance or the exercise of the rights granted herein. 8 (Ex. 633.) The models testified that, even at the time of trial (years later and after consulting with 9 attorneys), they found these statements confusing and incomprehensible. Moreover, as set forth 10 below, this type of exculpatory waiver is illegal and void in light of Defendants' fraud. 11 Many models also signed a second document called "Model/Talent Release and 12 Independent Contractor Agreement" (hereinafter "IC Agreement"). There are several iterations of 13 this document in the record, 26 but most Plaintiffs signed the version that, on the first page, contains 14 "Recitals" that state: 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREAS, BMI has undertaken the design and development of an adult-oriented content; and WHEREAS, videos, photographs, and any other media that includes nude and semi-nude images of Models, may comprise a significant portion of the content; and WHEREAS, Model, voluntarily, is willing to create exclusive video and/or photographic content (both adult-oriented and otherwise, collectively "Adult Content") for BMI under a "work made for hire" arrangement as that term is defined by the United States Copyright laws; and WHEREAS, Model understands that BMI shall own all world-wide intellectual property rights, copyright, trademark, services mark, patents, in and to all of the videos/photos taken of the Model, and any and all other content created for BMI for any other BMI purposes; 26 Another version of the IC Agreement contains Recitals that come closer to effective disclosure of Defendants' website and intention to post the videos online: "WHEREAS, BM! has undertaken the design and development of a website ("website"); and WHEREAS, videos, photographs, and any other media that includes images of Models will comprise a signification portion of the website content ... " This version of the IC Agreement was signed by only one Plaintiff, Jane Doe 16, who testified that she was so intoxicated prior to, during, and after the shoot that she does not recall signing the documents or any of the representations made to her about the documents. -28- (PROPOSED] STATEMENT OF DECISION 1 2 3 NOW, THEREFORE, in consideration of the foregoing and the mutual promises contained herein, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, it is hereby agreed as follows: 4 (Ex. 25.) The IC Agreement goes on to list twenty-one numbered and detailed terms, some 5 containing several subparts, covering eight pages in all. It is not until the bottom of the second 6 page, in Paragraph 7 entitled "Model Representations and Warrantees" that the document 7 references the internet, stating, "Model represents and warrants that she has not modeled for any 8 other online Website and agrees hereafter not to model for any other online Website or other form 9 of adult publication. Model acknowledges that BM! shall have the exclusive rights to Model's 10 likeness for online purposes or for any other purposes." Defendants argue that models can deduce 11 from these two sentences that BMI runs a website and plans to use her video "for online 12 purposes." But Defendants have repeatedly professed otherwise and bury this "disclosure" in a 13 lengthy legalistic document that models are not permitted to read and digest. The import of the 14 section is a restriction on the model's outside activities, not a representation regarding Defendants' 15 use of the videos. The Court accordingly finds that the IC Agreement also fails to adequately 16 disclose Defendants' website and pre-designed intention to publish the videos online. b. Defendants Film Women Reading a Verbal Script 17 18 Immediately before filming, Defendants hand women a sheet of paper (the "Script") and 19 instruct them to read it for the camera. Women rarely have a moment to skim the Script before the 20 camera is rolling and they are told to read. This Script says: 21 I { real name} am doing this scene for BLL Media of my own free will and I am of 22 sound mind and body. I am not under the influence of drugs or any mind altering 23 substances. 24 25 I know the pictures and footage filmed today on ___ [date] will be used in the scene name __ [first name] 26 After this scene is filmed I know I have released all rights whatsoever to the footage. 27 Anything contained in the footage may be used however BLL Media chooses. 28 -29- [PROPOSED] STATEMENT OF DECISION I 2 All other model agreements are stated in the model release, I willingly signed to do this scene. 3 (Ex. 754.) Some women read without comprehending, think little ofit and do not ask any questions 4 (such as Jane Does I, 2, 4- 8, 12, 15, 19, 20, and 21). Some women do ask questions, at which 5 point Defendants simply continue to misrepresent, giving a flippant explanation such as "so that we 6 know that [you're] sober" (08/27/19 Trial Tr. 68:13 -14); for "testing the sound and the levels on 7 the camera" (08/21/19 Trial Tr. 89:2); for "giving [us] permission to film [you]," (09/30/19 Trial 8 Tr. 25:3); or even "to cover [our] butts" (10/16/19 Trial Tr. 65:24). 9 Some women are confused by the Script because they are saying that they are "not under the IO influence of alcohol or any other mind-altering substance," but they have just consumed alcohol 11 and/or marijuana provided to them by Defendants and in Defendants' presence prior to reading. 12 These women conclude, quite understandably, that the Script is oflittle import. (See Jane Doe 15's 13 testimony: "everybody ... in the room knew that I wasn't [ ofsound mind] because we had just 14 smoked," 08/21/19 Trial Tr. 88:21 - 22.) 15 Most Plaintiffs testified that the Script did not raise any red flags. For those who testified 16 that they did find the Script puzzling or concerning, they also testified that Defendants' explanation 17 and continued assurances assuaged their doubts and put their minds at ease. (E.g., Jane Doe 10 18 testified she had no questions about the script because Defendants told her it was "the same thing I 19 was signing in the documents." 10/08/19 Trial Tr. 68:28.) 20 The Court finds that by misrepresenting the purpose and meaning ofthe Script, Defendants 21 continued to conceal material facts about the video's intended online destination, including the 22 name ofthe website(s) on which it would appear. 23 24 c. Defendants Conduct a Staged Interview Prior to beginning the sexual portion ofthe video, Defendants place the women on the bed 25 and conduct an interview to "personalize" her for the audience. Defendants do not tell women about 26 the interview before they travel to San Diego. The interview consists ofDefendants asking the 27 women personal questions about their sexual histories and preferences. Defendants instruct models 28 to act "flirty and perky" and often give them scripted lines to repeat in response to certain -30- [PROPOSED] STATEMENT OF DECISION 1 questions, (Jane Doe 18 Depo. 144:21 ). Nearly every woman says she is "excited to shoot, but 2 nervous" when asked how she is feeling (09/11/19 Trial Tr. 179:2). If Defendants do not like a 3 woman's answer to a particular question, they stop filming, coach her on what to say (or not say) 4 and re-shoot the scene. (E.g., Jane Doe 10 testified that Defendants instructed her on what to say, 5 and they would stop and start the interview portion to make sure she got it right, 10/08/19 Trial Tr. 6 70:28 - 71 :7.) 7 Some women are uncomfortable answering truthfully so they make up answers that they 8 think Defendants will like or they just use the answers Defendants suggest. (E.g., Jane Does 1, 2, 8, 9 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19,20,22.)Other womenjust go aheadand answer highly 10 personal questions because they believe that no one in the United States will ever see the video. 11 (E.g., Jane Does 3, 5.) Several Plaintiffs testified that they would not have agreed to the interview 12 or answered many of the questions if they had known that Defendants planned to post it on the 13 internet. 14 At trial, Defendants used these interviews as evidence to rebut some Plaintiffs' claims that 15 they were frightened or wanted to leave, but could not do so. However, video of a woman acting 16 outwardly "happy and flirty" in a staged interview is not persuasive evidence of the woman's actual 17 state of mind. Defendants manipulated the interviews by coaching women on what to say and how 18 to act and by carefully editing the video afterwards. Women needed to comply if they were to be 19 paid. 20 It is not disputed that some Plaintiffs were fully taken in by Defendants' ruse, were not 21 frightened, and felt quite comfortable with the experience as a whole. Video of these women 22 cheerfully answering questions she believes no one will ever see does not necessarily undermine 23 her fraud claim and in fact, shows how thoroughly she believed Defendants. 24 25 3. Defendants Use Coercive Tactics ifNecessary After the interview, the sexual portion of the video begins. Based on a stipulation among the 26 Parties, the Court will not address this portion of the shoot except to note that it typically takes 27 much longer than the advertised thirty minutes, often several times as long. Moreover, the woman's 28 entire body, including her face, is fully visible to the viewer throughout, while the male actor's face -31- [PROPOSED] STATEMENT OF DECISION I is never in the frame. Andre Garcia was the male actor in all of Plaintiffs' videos. Defendants 2 presented no evidence they informed any Plaintiff only her face (and not Garcia's) would be in the 3 frame. 4 Further, the Court does consider the testimony of several Plaintiffs that, at some point 5 during the shoot, they asked to stop, but Defendants would not permit them to leave until they had 6 the footage they wanted. This fact is important because Defendants argued repeatedly that Plaintiffs 7 "chose" to be in San Diego, "chose" to sign the documents, and "chose" to go through with the 8 shoot. 9 Defendants' argument ignores the obvious implicit power dynamic invariably present in the IO room: The women are alone in a hotel room with two men they barely know who, although friendly 11 at first, become aggressive and agitated if the women express hesitation or a desire to leave. Several 12 Plaintiffs testified that they had second thoughts prior to or during the shoot but felt they were not 13 in a position to try to leave. 14 Plaintiffs were also acutely aware of the risks of leaving the shoot. First, Defendants held 15 and controlled Plaintiffs' plane tickets home and most Plaintiffs could not afford to purchase a 16 ticket home or pay for a hotel room. Second, aware that Defendants had nude pictures and, in some 17 cases, pornographic video of them, Plaintiffs did not want to do anything to rock the boat for fear 18 that Defendants might retaliate. Furthermore, many women did not want anyone to know what they 19 were doing and therefore had not told anyone and did not want to call anyone for help. 20 In fact, ten Plaintiffs reported that they asked or tried to leave at some point before or during 21 the shoot, but Defendants insisted that they complete the shoot because the Defendants had already 22 spent the time and money to get the woman there and to get set up. When Jane Doe 16 asked not to 23 go through with the video shoot, Defendants threatened her to pay the cost of her plane ticket and 24 hotel room-a cost that she could not afford. (09/24/19 Trial Tr. 24:9 - 18.) This testimony shows 25 what happens when a woman tries to withdraw her consent. The Court's finds that, once in the hotel 26 room, Plaintiffs lacked had any feasible means of egress until Defendants declared that the shoot was 27 completed and released them. 28 -32- [PROPOSED] STATEMENT OF DECISION I 2 4. Defendants Encourage Women to do a Solo Video After the shoot involving sexual intercourse with Garcia, Defendants ask women to film a 3 "solo" video (i.e., using a sex toy). Defendants tell women that the solo video will be distributed in 4 the same limited manner as the first video. Continuing to believe Defendants' representations, many 5 Plaintiffs proceed to film a solo video. 6 All Plaintiffs who shot more than one video with Defendants did so before their first video 7 was published online. Plaintiffs had no way to discover that Defendants had lied to them before 8 their videos appeared online. That some women shot more than one video does not mean that they 9 were not defrauded. To the contrary, it is consistent with their testimony that they were deceived IO into filming the videos. iii. Defendants Widely Distribute the Videos for Financial Gain Regardless 11 12 13 of the Consequences to the Models Defendants have never sold their pornographic videos on DVD format. (I 0/3/19 Trial. Tr. 14 150:5 - IO; 10/2/19 Trial Tr. 109:6 - 17 [Wolfe admitting that, as far as he knows, all 15 pornographic videos Pratt and his companies have produced have only been distributed on the 16 internet].) Contrary to their many representations, Defendants published Plaintiffs' videos on the 17 internet. On top of this, Defendants used an aggressive marketing strategy to encourage as many 18 people as possible to view the videos. Defendants publish the boy-girl videos on GirlsDoPorn.com 19 and the solo videos on GirlsDoToys.com. The full-length videos are published only in the 20 "members' area" of Defendants' subscription websites; these can only be accessed by purchasing a 21 subscription. However, Defendants also post still images from the shoot and short clips from the 22 video on the website's publicly accessible homepage as an advertisement to entice people to 23 purchase a subscription. Videos and images of each Plaintiff appeared on the publicly available 24 homepage. 25 26 27 28 1. Defendants Post Clips of the Videos on Popular Free "Tube" Websites Once a video is posted on their subscription websites, Defendants embark on an aggressive advertising campaign to maximize the number of people who see or learn about the video, visit -33- [PROPOSED! STATEMENT OF DECISION I their website, and purchase a subscription. This effort includes making clips of the videos available 2 on popular free "tube" sites, affiliate marketing, and ensuring that people who personally know the 3 female model learn about the video-piquing their curiosity and making it "go viral." 4 In order to advertise for their subscription sites, Defendants post clips of their videos, 5 including Plaintiffs' videos, on free "tube" sites, which are popular and heavily trafficked. During 6 the relevant time period, Defendants had dedicated channels on numerous tube sites, including 7 Pornhub.com, XVideos.com, and XnXX.com, among others. (See, e.g., Exs. 1579; 1582.7; 1585; 8 1736.) The GirlsDoPorn channels on free tube sites contain mostly 5- to 7-minute clips of videos 9 filmed by Defendants, along with advertisements for and links to Defendants' subscription 10 websites. (See, e.g., Exs. 1579; 1582.7; 1585; 1736.) Pratt and Wolfe both testified that Pratt 11 personally posts all the videos to the GirlsDoPorn channels on the tube sites. (Pratt Depo. Vol. I, 12 209:10 - 23; 10/2/19 Trial Tr. 151: 13 - 153:16.) Pratt also writes the captions posted on the tube 13 sites. (Pratt Depo Vol. II, 427:19 - 21; 432: 10 - 22.) 14 Free tube sites are popular, and Defendants' channels on these sites receive an enormous 15 amount of traffic. The GirlsDoPorn channel on Pornhub is a popular channel on Pornhub, with 16 more than 700,000 subscribers and more than 600 million views. (Ex. 1576.1.) All or nearly all of 17 the Plaintiffs' videos were, at some point, available for free on GDP's Pornhub channel. (See Exs. 18 1576, 1736.) According to the view-counter on Pornhub, Plaintiffs' videos have been viewed 19 anywhere from a few hundred thousand times to thirty-five million times.27 (Ex. 1576.) Each 20 Plaintiffs video was, at some point, available for free on public, non-subscription sites. (See Exs. 21 1576, 1581, 1582, 1583.) 22 23 2. Defendants Intentionally "Dox" (Publicly "Out") Their Models or Permit and Encourage Internet "Trolls" to Do So 24 Each Plaintiff has proven that after her video(s) were placed online, they spread throughout 25 her social circles, including friends, family, co-workers, employers, teachers, and classmates. As a 26 result, most Plaintiffs experienced merciless harassment. The Court finds that Defendants knew at 27 28 27 Pratt admitted that he believes the number of views listed on Pornhub's videos accurately reflects the actual number of times a video has been viewed. (Pratt Depa. Vol. II, 427: 13 - 429:22.) -34- [PROPOSED] STATEMENT OF DECISION 1 the time they recruited each and every Plaintiff that this result was inevitable. The Court further 2 finds that Defendants deliberately profited from the videos being leaked to Plaintiffs' personal 3 circles and communities. At best, Defendants knowingly stood by while this happened, in order to 4 increase website traffic and corresponding profits, while falsely assuring models that this nightmare 5 scenario could never occur. At worst, Defendants encouraged and facilitated this outing process and 6 even participated directly. 7 The spread of Plaintiffs' videos throughout their social circles does not happen by chance; it 8 is the foreordained outcome of a deliberate campaign by online "trolls" to identify and humiliate 9 women who appear in pornographic videos. Stemming from a perverse fascination with (and 10 perhaps distain for) women who appear in pornography, anonymous internet users ("trolls") 11 congregate on online forums such as PornWikiLeaks.com (Ex. 1735 [full list by episode number]), 12 NameThatPorn.com (Ex. 1702 ["The List"]), and Schan.net (Ex. 480), to identify these women by 13 name and glean personal information about them. The trolls share the information they find- 14 including a model's name, biographical information, links to her social media accounts, and other 15 contact inforrnation--on the forum,28 and then the harassment begins. Armed with the woman's 16 social media and contact information, some trolls spend their time sending links to her video to 17 people connected to her on social media. Other trolls contact the models personally to attack, bully, 18 and shame them, or to comment on their videos and proposition them. 19 Defendants admit they have been aware of such lists for years. (Pratt Depo. Vol. II, 350:21 - 20 351: 18; 10/2/2019 Trial Tr. 131 :10-132: 17). In fact, Defendants have something of a cult following 21 on these forums. Numerous websites and forums exist for the sole purpose of outing and