JOAQUIN v. DIRECTV GROUP HOLDINGS, INC. et alMEMORANDUM in SupportD.N.J.October 22, 20184818-4070-7192.1 LEWIS BRISBOIS BISGAARD & SMITH LLP Attorneys for Defendants Lonstein Law Office, P.C., Wayne Lonstein and Julie Cohen Lonstein One Riverfront Plaza, Suite 800 Newark, New Jersey 07102 973-577-6260 ANGELA JOAQUIN, on behalf of herself and all others similarly situated, Plaintiff, v. LONSTEIN LAW OFFICES, P.C., a New York Professional Corporation; JULIE COHEN LONSTEIN; WAYNE LONSTEIN; SIGNAL AUDITING, INC. and STEVEN LEVINE, Defendants. : : : : : : : : : : : : : : : : : : : : : UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY Civil Action No. 15-8194 (MAS) (DEA) DEFENDANTS LONSTEIN LAW OFFICE, P.C., WAYNE LONSTEIN AND JULIE COHEN LONSTEIN’S REPLY MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Case 3:15-cv-08194-MAS-DEA Document 131 Filed 10/22/18 Page 1 of 21 PageID: 3208 i TABLE OF CONTENTS PRELIMINARY STATEMENT ............................................................................... 1 ARGUMENT ............................................................................................................. 1 I. PLAINTIFF’S NJ RICO CLAIM SHOULD BE DISMISSED ............ 1 A. PLAINTIFF DID NOT OPPOSE ARGUMENTS IN THE LONSTEIN MEMO ........................................................... 1 B. THE LONSTEIN DEFENDANTS DID NOT ENGAGE IN A PREDICATE ACT ............................................................ 1 1. DECEPTIVE BUSINESS PRACTICES, N.J.S.A. 2C:21-7(H) ........................................................................ 2 2. ATTEMPTED EXTORTION, N.J.S.A. 2C:20- 4(A) ................................................................................... 5 3. MAIL FRAUD, 18 U.S.C. § 1341 .................................... 7 4. ATTEMPTED EXTORTION UNDER THE HOBBS ACT, 18 U.S.C. § 1951(A) ................................ 7 C. THERE WAS NO PARTICIPATION OR PATTERN OF RACKETEERING ...................................................................... 8 D. PLAINTIFF LACKS STANDING DUE TO THE ABSENCE OF DAMAGES ..................................................... 10 E. THE OPPOSITION MISTAKES THE STAGE OF THIS PROCEEDING IN ASKING THAT THE COURT DENY NOERR-PENNINGTON IMMUNITY ........................ 13 F. DEFENDANTS’ CONDUCT WAS PRIVILEGED UNDER THE FIRST AMENDMENT ..................................... 13 CONCLUSION ...................................................................................................... 166 Case 3:15-cv-08194-MAS-DEA Document 131 Filed 10/22/18 Page 2 of 21 PageID: 3209 ii TABLE OF AUTHORITIES Cases Page Atlantic Ambulance Corp. v. Cullum, 166 A.3d 260 (Super. Ct. App. Div. 2017) .........................................................12 Cardtoons, L.C. v. Major League Baseball Players Ass’n, 208 F.3d 885 (10th Cir. 2000) .............................................................................14 Chevron Corp. v. Donziger, 833 F.3d 74 (2d Cir. 2016) ..................................................................................11 Desmond v. Siegel, 10-5562, 2012 U.S. Dist. LEXIS 109579 (D.N.J. Aug. 6, 2012) ...................................6, 10 Evans v. United States, 504 U.S. 255 (1992) .............................................................................................. 8 Franco v. Conn. Gen. Life Ins. Co, No. 07-6039 (SRC), 2014 U.S. Dist. LEXIS 85595 (D.N.J. June 24, 2014) ........ 9 Giles v. Phelan, Hallinan & Schmieg, L.L.P., No. 11-6239, 2013 U.S. Dist. LEXIS 78161 (D.N.J. June 4, 2013) ...................14 Hoffman La Roche Inc. v. Genpharm Inc., 50 F. Supp.2d 367 (D.N.J. 1999) .........................................................................13 In re Gabapentin Patent Litig., 649 F. Supp.2d 340 (D.N.J. 2009) .......................................................................13 J & J Sports Prods. v. Gallegos, No. 08-201, 2008 U.S. Dist. LEXIS 61066 (D.N.J. Aug. 5, 2008) ....................... 4 Kennedy Funding, Inc. v. Lion’s Gate Dev., LLC, No. 05-4741, 2006 U.S. Dist. LEXIS 21227 (D.N.J. Apr. 18, 2006) ................... 2 Nat’l Women’s Center, Inc. v. McMonagle, 689 F. Supp. 465 (E.D. Pa. 1988) ................................................................. 10, 11 Otsuka Pharm. Co. v. Apotex Corp., 143 F. Supp.3d 188 (D.N.J. 2015) .......................................................................13 Case 3:15-cv-08194-MAS-DEA Document 131 Filed 10/22/18 Page 3 of 21 PageID: 3210 iii Pers. Dep’t, Inc. v. Prof’l Staff Leasing Corp., 297 Fed. Appx. 773 (10th Cir. 2008) ..................................................................14 Reves v. Ernst & Young, 507 U.S. 170 (1993) .............................................................................................. 9 Robinson v. Hartzell Propeller, Inc., 454 F.3d 163 (3d Cir. 2006) ................................................................................15 Rolo v. City Investing Co. Liquidating Tr., 845 F. Supp. 182 (D.N.J. 1993) ...........................................................................10 Sosa v. DIRECTV, INC., 437 F.3d 923 (9th Cir. 2006) ...............................................................................13 State v. Ball, 141 N.J. 142 (1995) .............................................................................................10 Sweet St. Deserts, Inc. v. Chudleigh's Ltd., no. 12-3363, 2013 U.S. Dist. LEXIS 49283 (E.D. Pa. Apr. 4, 2013) .................15 United States v. Cerilli, 603 F.2d 415 (3d Cir. 1979) .................................................................................. 8 WE, Inc. v. City of Phila., Dep’t of Licenses & Inspections, 174 F.3d 322 (3d Cir. 1999) ......................................................................... 14, 15 Weiss v. First Unum Life Ins. Co., 482 F.3d 254 (3d Cir. 2007) ................................................................................11 Rules Page N.J.S.A. 2C:20-4(a).................................................................................................... 5 N.J.S.A. 2C:21-7(h) ................................................................................................... 2 Statutory Authorities Page 18 U.S.C. § 1341 ........................................................................................................ 7 18 U.S.C. § 1951(a) ................................................................................................... 7 47 U.S.C. § 605 et seq ................................................................................................ 4 Case 3:15-cv-08194-MAS-DEA Document 131 Filed 10/22/18 Page 4 of 21 PageID: 3211 1 Preliminary Statement1 As set forth below, Plaintiff’s opposition to the Lonstein Defendants’ motion for summary judgment fails to identify sufficient record evidence to avoid dismissal of her NJ RICO claim.2 Argument I. PLAINTIFF’S NJ RICO CLAIM SHOULD BE DISMISSED A. Plaintiff did not Oppose Arguments in the Lonstein Memo The entirety of Plaintiff’s NJ RICO claim stems from the Lonstein Defendants sending of attorney demand letters threatening legal action. Plaintiff fails to oppose or distinguish the Lonstein Memo’s argument that an attorney demand letter threating litigation or demanding money based on a statutory violation is not the equivalent of debt collection, and is insufficient to establish a NJ RICO claim. (Lonstein Memo pp. 11-12, 22.) Additionally, Plaintiff fails to oppose or distinguish the Lonstein Memo’s showing that proof of scienter is required to successfully prosecute a RICO claim. (Lonstein Memo pp. 23.)The Court should treat these points as unopposed. B. The Lonstein Defendants Did Not Engage in a Predicate Act Plaintiff’s argument that the Lonstein Defendants can be held liable because 1 The Lonstein Defendants incorporate herein all arguments set forth in the Signal Defendants’ Summary Judgment Reply Brief being filed concurrently. 2 Plaintiff’s opposing memorandum of law is cited as the “Pl. Memo.” The Lonstein Defendants’ moving memorandum of law is cited as the “Lonstein Memo.” The abbreviations used herein are those defined in the Lonstein Memo. Case 3:15-cv-08194-MAS-DEA Document 131 Filed 10/22/18 Page 5 of 21 PageID: 3212 2 they engaged in various predicate acts of racketeering activity fails because there is insufficient evidence that the Lonstein Defendants engaged in any of the four offenses which Plaintiff claims constitute racketeering activity under NJRICO. 1. Deceptive Business Practices, N.J.S.A. 2C:21-7(h) Plaintiff’s Second Amended Complaint fails to allege that the Lonstein Defendants engaged in deceptive business practices in violation of N.J.S.A. 2C:21- 7(h). Even if it had, Plaintiff could not raise a genuine fact issue as to this claim because the Lonstein Defendants did not engage in such conduct in violation of the statute. As the Lonstein Memo demonstrated, Plaintiff would have to prove that the Lonstein Defendants made a false or misleading written statement for the purpose of obtaining property or credit. Kennedy Funding, Inc. v. Lion’s Gate Dev., LLC, No. 05- 4741, 2006 U.S. Dist. LEXIS 21227, at *5 (D.N.J. Apr. 18, 2006). Plaintiff cannot possibly do so as she was not actually misled and she did not give up any rights, property, or credit in response to the challenged conduct. Plaintiff’s Disputed Statement and Facts3 and the Pl. Memo ignore that DirecTV made its own determination as to whether customers used its service without authorization, and then unilaterally instructed the Lonstein Defendants which 3 The Lonstein Defendants have objected and denied the material averments of Plaintiff’s Disputed Statement of Facts. Insofar as Plaintiff cites and attaches the Craig Spencer Declaration from the Spina case (Wolfe Decl, Ex. J), it is inadmissible and does not support the contentions for which it is submitted. Case 3:15-cv-08194-MAS-DEA Document 131 Filed 10/22/18 Page 6 of 21 PageID: 3213 3 establishments to contact. (J. Lonstein Dec. ¶¶ 28, 29; Plaintiff’s Response Statement of Material Facts (“RSOF”), Dkt. No.120-3, ¶¶ 95-98.) The Lonstein Defendants could not file suit without DirecTV’s authorization, and they have never been part of the inquiry into whether a particular customer’s exhibition of DirecTV’s programming was authorized. (J. Lonstein Dec. ¶ 29; RSOF ¶ 98.) Without knowing which establishment may or may not violate DirecTV’s viewing authorization, the Lonstein Defendants could not have made knowingly false or misleading statements. Plaintiff contends, without any support, that prior to sending the two demand letters, the Lonstein Defendants had knowledge from a number of sources other than DirecTV that the information it had was either false or misleading. These include: 1) The DirecTV services at Plaintiff’s salon were sold as part of a Verizon Triple-Play package by a third-party retailer, who never informed her of the type of subscription; 2) As set forth in a California federal case, another business accused of commercial misuse of a residential DirecTV account made similar claims4; 3) Because Plaintiff primarily spoke Spanish and was not fluent in English, she could not read her DirecTV Customer Service Agreement; and 4) DirecTV would mail small-print Customer Agreement, printed in English, that stated that the exhibition of DirecTV programming in public areas was prohibited. Pl. Memo p. 9. There is no record evidence that the Lonstein Defendants ever had any of this 4 Pl. Memo, p. 9, second bullet point refers to Exhibit G, which is the contract between DirecTV and LLO. This is not only incorrect but also improper as Plaintiff failed to file this confidential document under seal. Case 3:15-cv-08194-MAS-DEA Document 131 Filed 10/22/18 Page 7 of 21 PageID: 3214 4 information prior to sending the letters. For example, there is no evidence they ever had knowledge as to what any third-party retailer informed Plaintiff concerning the type of subscription she purchased. And there is no evidence to suggest the Lonstein Defendants knew or should have known that Plaintiff primarily spoke Spanish or could not read the Customer Agreement because it was English or due to the font size5. Plaintiff’s lack of factual support in the record dooms her argument. Because intent is crucial to a private right of action for statutory damages under 47 U.S.C. § 605 et seq., Plaintiff contends in conclusory fashion that the August 17 letter was misleading insofar as it accused Plaintiff of having “intended” to defraud DirecTV. Plaintiff argues that for an unintentional violation of 47 U.S.C. § 605 et seq., the damages are a maximum of $10,000 but can also be as low as $250 absent intent. Plaintiff’s argument does not furnish a basis for liability, and is actually consistent with the $10,000 demanded in the August 17 letter, which demanded no more than the strict liability amount permitted under the law. Plaintiff cites J & J Sports Prods. v. Gallegos, No. 08-201, 2008 U.S. Dist. LEXIS 61066, at *8-9 (D.N.J. Aug. 5, 2008), which supports the Lonstein Defendants’ position. There, the court held that damages for violations of this statute 5 Plaintiff attaches this document to the Wolfe Decl., Exhibit H, and calls it the “actual Customer Agreement”. In Response to Plaintiff’s Supplemental Disputed Facts, the Lonstein Defendants object on several grounds, including that Plaintiff failed to produce this document in discovery and has not authenticated it. Case 3:15-cv-08194-MAS-DEA Document 131 Filed 10/22/18 Page 8 of 21 PageID: 3215 5 could be up to $10,000, but are also subject to judicial determination: “§ 605… allow[s] Plaintiff to elect to receive statutory damages, which are determined based on statutory guidelines and judicial discretion…§ 605 provides for basic statutory damages of "not less than $ 1,000 or more than $10,000…” Just because damages are subject to judicial determination does not change that the demand of $10,000 is within the strict liability penalty under the law and is therefore not improper. Plaintiff fails to recognize the litany of cases in the Lonstein Memo that confirm that Plaintiff’s reception and display of residential services at her business make her strictly liable regardless of Defendants’ intent. (Lonstein Memo pp. 9-10.) Therefore, Plaintiff has not raised a fact question as to whether the Lonstein Defendants acted fraudulently by sending demand letters advising of her potential liability and proposing a resolution. 2. Attempted Extortion, N.J.S.A. 2C:20-4(a) Plaintiff’s pleading fails to allege that the Lonstein Defendants engaged in any attempted criminal activity. (2 A.C. ¶¶ 79 - 82.) It would appear Plaintiff is now changing her argument in light of the Lonstein Memo’s showing that she cannot possibly prove the elements of extortion. Regardless, if Plaintiff’s definition of attempted extortion were accepted, virtually every letter demanding redress for a statutory violation or other claimed actionable conduct would be prohibited. The Court should reject Plaintiff’s invitation to rewrite the law in this fashion. Case 3:15-cv-08194-MAS-DEA Document 131 Filed 10/22/18 Page 9 of 21 PageID: 3216 6 Plaintiff fails to distinguish or acknowledge the legion of cases cited in the Lonstein Memo which held that an attorney demand letter or threat of litigation cannot form the basis of a RICO predicate act. (See Lonstein Memo pp. 11-12.) Instead, Plaintiff relies on Desmond v. Siegel, 10-5562, 2012 U.S. Dist. LEXIS 109579 (D.N.J. Aug. 6, 2012), to argue that the Lonstein Defendants’ conduct was sufficiently egregious to be deemed an attempted extortion. The Court should reject Plaintiff’s effort to liken this case to Desmond. There, defendant Siegel, a well-known rogue, had extorted plaintiff in violation of the Hobbs Act and New Jersey law via correspondence accusing him of a “multimillion dollar theft” and of “immoral and unethical business practice” while likening him to a rapist due to his “financial rape” as well as “copyright theft”, and threatening public disclosures of the supposed misdeeds (and subsequent creation of a website featuring negative information about plaintiff). Id. at *11. It is hardly surprising that conduct of that reprehensible ilk was deemed to be an attempt to extort that supported a RICO claim. By contrast, the Lonstein Defendants’ correspondence – which consisted of a straightforward, invective-free recitation of the basis for their clients’ rights and efforts to achieve an early resolution – contains nothing to support the characterization of an “attempt[] to extort money . . . through fear.” Id. at *32. Moreover, the Court should not be persuaded by Plaintiff’s argument that the Lonstein Defendants disclosed DirectTV’s secret videotaping in order “to shock and Case 3:15-cv-08194-MAS-DEA Document 131 Filed 10/22/18 Page 10 of 21 PageID: 3217 7 frighten the recipient.” (Pl. Memo. p. 14.) The Lonstein Defendants sought to develop a strong factual case in support of their client’s position by disclosing captured evidence taken in an area open to the public in order to verify the exhibition of DirecTV programming in the event litigation was filed. (PL1-PL9.) To condemn the Lonstein Defendants for conducting due diligence before contacting Plaintiff and calling her attention to potential liability would only subvert public policy by encouraging reckless conduct and thwart the ability of attorneys to conduct proper and thorough claim investigation in pursuit of their clients’ legal rights. 3. Mail Fraud, 18 U.S.C. § 1341 Plaintiff fails to present an evidentiary basis to credit the bald averment that the Lonstein Defendants did anything fraudulent that could constitute mail fraud. The Pl. Memo points to no evidence that the Lonstein Defendants had knowledge of any false statements. Plaintiff is reduced to characterizing the Lonstein Defendants’ conduct as lacking “moral uprightness” and being dishonest and deceptive. (Pl. Memo p. 16.) Merely slapping the label of fraud onto a party’s conduct is insufficient to give rise to a mail fraud claim. Absent actual factual evidence to combat the Lonstein Defendants’ properly supported motion, the Court should give Plaintiff’s position short shrift. 4. Attempted Extortion under the Hobbs Act, 18 U.S.C. § 1951(a) Plaintiff’s pleading is unspecific as to the kind of extortion the Lonstein Defendants allegedly committed, and again does not allege that any such attempt at Case 3:15-cv-08194-MAS-DEA Document 131 Filed 10/22/18 Page 11 of 21 PageID: 3218 8 extortion occurred. Even if the pleading were sufficient, Plaintiff fails to rebut the Lonstein Defendants’ showing that she cannot prove that she had an existing right to be free of the alleged economic fear, as required by the Hobbs Act. (Lonstein Memo p. 12.) Further, has not raised a fact question as to any attempt to violate the Hobbs Act because there is no evidence that the Lonstein Defendants attempted to obtain property with the victim's “consent, induced by wrongful use of actual or threatened force, violence, or fear,” including fear of economic harm. Evans v. United States, 504 U.S. 255, 265 (1992); United States v. Cerilli, 603 F.2d 415, 418 (3d Cir. 1979). If a plaintiff could claim that a legitimate attorney threat of legal action on behalf of a client, or other similar “dunning letter”, without more, rises to a violation of the Hobbs Act, debt collectors - including attorneys and others engaged in such communications - would be subject to significant liability in a manner that has never been recognized and that should not be imposed. C. There was no Participation or Pattern of Racketeering Plaintiff argues that the attorney demand letters are sufficient to form a pattern of racketeering, ignoring the Lonstein Defendants’ showing that two letters addressing the same issue concerning Plaintiff’s unauthorized commercial exhibition of DirecTV programming are not two discrete acts for purposes of the statute, or that the short lived scheme alleged is insufficient to support a claim. (Lonstein Memo pp. 14-15.) In addition, Plaintiff contends that the record “could” support a finding of a Case 3:15-cv-08194-MAS-DEA Document 131 Filed 10/22/18 Page 12 of 21 PageID: 3219 9 pattern of racketeering by speculating that the Signal Defendants engaged in some imaginary fact pattern which includes the stealing of customer lists from DirecTV for the sole purpose of committing extortion and other predicates. (Pl. Memo 20.) Presenting this conditional argument for potential liability at this late date, after discovery is now complete reflects Plaintiff’s concession that she has no factual basis for her pleaded claims. As this Court held in Franco v. Conn. Gen. Life Ins. Co.: “At this stage of the litigation…more than allegations and arguments are required…[and although Plaintiff’s claims] may have survived the pleading stage of this litigation, they cannot proceed beyond this Rule 56 motion without Plaintiffs' citation to ‘particular parts of materials in the record’ that support their contentions.” No. 07- 6039 (SRC), 2014 U.S. Dist. LEXIS 85595, at *71 (D.N.J. June 24, 2014) (internal citations omitted). Plaintiff has not made out her summary judgment burden. In addition, Plaintiff cannot raise a genuine fact question as to her contention that movants participated in the putative enterprise. Necessarily, the enterprise could not have been formed absent the conduct that induced Plaintiff to sign up for the DirecTV service, followed by the later investigation and demand letters. As the Lonstein Defendants demonstrated, there is no evidence that they had any role in the first part of that conduct. (Lonstein Memo p. 16.) Hence, there is no evidence that they “participate[d] in the operation or management of the enterprise itself” by virtue of having performed legal services in connection with the second part of the story. Reves Case 3:15-cv-08194-MAS-DEA Document 131 Filed 10/22/18 Page 13 of 21 PageID: 3220 10 v. Ernst & Young, 507 U.S. 170, 185 (1993); Rolo v. City Investing Co. Liquidating Tr., 845 F. Supp. 182, 232 (D.N.J. 1993). Again, Plaintiff fails to muster any facts to support her position, and instead argues that “the above requirements for association and participation are supported by the record as to all Defendants”. (Pl. Memo p. 22.) Plaintiff ignores the evidentiary record because it is clear in that the Lonstein Defendants lack of involvement in the initiating conduct insulates them from liability. State v. Ball, 141 N.J. 142, 175 (1995). D. Plaintiff Lacks Standing Due to the Absence of Damages Plaintiff argues that she “has sufficiently alleged such damage caused by the Defendants’ attempted extortion and other predicate acts, including the imposition of wrongful debt, attorney’s fee obligations incurred to address the threats of legal action, and the disconnection of satellite television services for which she had paid.” (Pl. Memo p. 22.) Again, the standard is not what is alleged, it is what is supported by the evidence, and Plaintiff points to no evidence to support that she has standing. In arguing that the refusal to pay money demanded could support damages in an attempted extortion case, Plaintiff again relies on Desmond v. Siegel, 2012 U.S. Dist. LEXIS 109579. As shown above, the case is not on point because there, unlike here, damages from the defendant’s shocking conduct were evident. Plaintiff does not help her argument by citing Nat’l Women’s Center, Inc. v. McMonagle, 689 F. Supp. 465, 474-75 (E.D. Pa. 1988). The plaintiff there “alleged Case 3:15-cv-08194-MAS-DEA Document 131 Filed 10/22/18 Page 14 of 21 PageID: 3221 11 and presented evidence of two distinct injuries —physical injury to its property and injury to its business because it was forced to spend more money to maintain its operations in the face of defendants (sic) extortionate acts.” Here, by contrast, Plaintiff did not suffer a physical injury, and her own testimony concedes that she has never paid any legal fees and she faces no possible debt to her own attorneys. (Joaquin Dep. at 70:21-71:9; RSOF ¶¶ 131-132.) As developed above, in the instant case there was no attempted extortion, and certainly none comparable to the conduct at issue in McMonagle, which involved vigorous protesting outside an abortion clinic including vandalizing the clinic in an effort to induce it to cease operating. Plaintiff’s citation to Chevron Corp. v. Donziger, 833 F.3d 74 (2d Cir. 2016), similarly does not support her position. Chevron involved a fraudulent judgment entered by a South American court with the participation of government actors, giving rise to a billion dollar judgment. Plaintiff cannot realistically liken that “wrongful debt” to her own receipt of a plain vanilla attorney demand letter. In citing Weiss v. First Unum Life Ins. Co., 482 F.3d 254, 258 n.2 (3d Cir. 2007), Plaintiff argues that costs associated with remediating or taking legal action in response to a RICO claim amount to an out of pocket loss actionable under RICO. But she can only do so by ignoring the facts of her own case. Plaintiff admittedly did not give into the demands, has no out of pocket losses, and will owe nothing to her attorneys. (Joaquin Dep. at 67:24-68:9; 70:21-71:9; RSOF ¶¶ 131-132.) Case 3:15-cv-08194-MAS-DEA Document 131 Filed 10/22/18 Page 15 of 21 PageID: 3222 12 Conspicuously, Plaintiff fails to dispute the Lonstein Defendants’ showing that RICO liability cannot attach to future contingent attorneys’ fees or damages. (Lonstein Memo pp. 22-23.) Similarly, Plaintiff claims that the disconnection of the satellite television services for which she had paid suffices to establish standing. Plaintiff cites to no authority to support this novel argument or for the contention that standing can be predicated on the supposed loss of use of a product or service (particularly as to a party not responsible for providing or terminating same). Because Plaintiff is unable to show actual damages, she incorrectly conflates the demands in the Lonstein attorney letters with a “wrongful debt”. Plaintiff does not – because she cannot – overcome the Lonstein Memo’s showing that the threat of litigation and a demand for money derived from violation of a statute is not the equivalent of a debt or a debt collection and is insufficient to establish a NJ RICO claim. (Lonstein Memo p. 22.) Further, Plaintiff’s citation of Atlantic Ambulance Corp. v. Cullum, 166 A.3d 260, 262 (Super. Ct. App. Div. 2017), does not help her. The question there was whether class certification was appropriate as to various consumers claims (and it was held inappropriate as to most of the pleaded claims). To the extent the Court addressed the concept of ascertainable loss, it did so under the CFA, a statute not at issue in the instant case. It is not disputed that damages are subject to proof and need not be identifiable Case 3:15-cv-08194-MAS-DEA Document 131 Filed 10/22/18 Page 16 of 21 PageID: 3223 13 in great detail at the outset of a lawsuit. Here, however, discovery has been completed, and Plaintiff manifestly cannot identify any concrete damages. Plaintiff’s speculation and conjecture cannot substitute for evidence. Given the clear record her claims should be dismissed. E. The Opposition Mistakes the Stage of this Proceeding in asking that the Court Deny Noerr-Pennington Immunity Point v. of the Pl. Memo argues that the Court should deny the Lonstein Defendants’ Noerr-Pennington argument on the misguided basis that the issue cannot be decided in the context of a Rule 12 motion to dismiss. (Pl. Memo. pp. 34 – 37.) But we are not at that stage; rather, we are at the Rule 56 stage, at which evidence, not allegations, is critical. In support of this flawed argument, Plaintiff cites to various allegations made in her pleadings that “if true, would preclude application of First Amendment right to petition immunity.” (Pl. Memo. p. 36.) Further, Plaintiff relies entirely on decisions in support of this argument which are all in the context of a Rule 12 motion. See In re Gabapentin Patent Litig., 649 F. Supp.2d 340 (D.N.J. 2009); Hoffman La Roche Inc. v. Genpharm Inc., 50 F. Supp.2d 367 (D.N.J. 1999); Otsuka Pharm. Co. v. Apotex Corp., 143 F. Supp.3d 188 (D.N.J. 2015). At the summary judgment stage, this argument is misplaced and should be rejected. F. Defendants’ Conduct was Privileged Under the First Amendment Contrary to the position taken in the Pl. Memo., the Lonstein Defendants have ample authority beyond Sosa v. DIRECTV, INC., 437 F.3d 923 (9th Cir. 2006), to Case 3:15-cv-08194-MAS-DEA Document 131 Filed 10/22/18 Page 17 of 21 PageID: 3224 14 support the proposition that sending pre-suit demand letters is protected under Noerr- Pennington. The Lonstein Memo cites decisions from around the country extending immunity principles to pre-litigation letters. (See pp. 25-26.) Plaintiff relies on the lone circuit court decision which ruled against extending the Noerr-Pennington Doctrine to matters outside of the antitrust context. Cardtoons, L.C. v. Major League Baseball Players Ass'n, 208 F.3d 885, 892 (10th Cir. 2000). Notably, even the Tenth Circuit has applied First Amendment immunity to an unpublished decision outside of the antitrust arena. See Pers. Dep't, Inc. v. Prof'l Staff Leasing Corp., 297 Fed. Appx. 773, 778-79 (10th Cir. 2008). Either way, Cardtoons was never the law in this Circuit. Plaintiff argues that WE, Inc. v. City of Phila., Dep't of Licenses & Inspections, 174 F.3d 322 (3d Cir. 1999), suggests that the Third Circuit would hold that there is no broad immunity from suit for petitioning activity. Plaintiff is mistaken for four reasons. First, “the issue in We, Inc. was whether a summary judgment order denying the Noerr-Pennington defense was an appealable collateral order… We, Inc. did not hold that a trial court cannot dismiss a case on Noerr-Pennington grounds.” Giles v. Phelan, Hallinan & Schmieg, L.L.P., No. 11-6239, 2013 U.S. Dist. LEXIS 78161, at *19 (D.N.J. June 4, 2013). Second, We, Inc. did not hold that the right to petition did not rise to the level of broad immunity. Instead, it held that the “key consideration in each of these cases was whether the claimed right sought to be protected was Case 3:15-cv-08194-MAS-DEA Document 131 Filed 10/22/18 Page 18 of 21 PageID: 3225 15 characterized as a right to immunity from suit or a defense to liability.” Robinson v. Hartzell Propeller, Inc., 454 F.3d 163, 171 (3d Cir. 2006). Third, the Third Circuit did not address allegations based on the sending of a demand letter threatening litigation and gave no indication as to how it would rule such a scenario. Id. Fourth, Plaintiff ignores the Eastern District of Pennsylvania decision cited in the Lonstein Memo, Sweet St. Deserts, Inc. v. Chudleigh's Ltd., no. 12-3363, 2013 U.S. Dist. LEXIS 49283, at *18 (E.D. Pa. Apr. 4, 2013). That decision followed the rationale of We, Inc., holding that “there is little intelligible reason why pre-suit demand letters in the antitrust context should be treated differently than those in analogous statutory contexts.” In sum, the Noerr-Pennington rationale applies squarely here and provides still another reason for the Court to order dismissal of this action with prejudice. Case 3:15-cv-08194-MAS-DEA Document 131 Filed 10/22/18 Page 19 of 21 PageID: 3226 16 Conclusion For the foregoing reasons, and those stated in the previously submitted papers, the Lonstein Defendants’ motion should be granted in all respects. LEWIS BRISBOIS BISGAARD & SMITH LLP By:/s/ Jeffrey Spiegel Jeffrey Spiegel Peter T. Shapiro Attorneys for Defendants Lonstein Law Office, P.C. Wayne Lonstein and Julie Cohen Lonstein One Riverfront Plaza Newark, New Jersey 07102 973-577-6260 Jeffrey.Spiegel@lewisbrisbois.com Peter.Shapiro@lewisbrisbois.com Dated: October 22, 2018 Case 3:15-cv-08194-MAS-DEA Document 131 Filed 10/22/18 Page 20 of 21 PageID: 3227 17 CERTIFICATE OF SERVICE Jeffrey Spiegel, an attorney duly admitted to practice before this Court, certifies that on October 22, 2018, he caused to be filed via ECF the Reply Memorandum of Law and . /s/ Jeffrey Spiegel Jeffrey Spiegel Case 3:15-cv-08194-MAS-DEA Document 131 Filed 10/22/18 Page 21 of 21 PageID: 3228
