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Rose McGowan has convinced a California federal judge she has a plausible fraud claim against Harvey Weinstein, some of his lawyers and an intelligence agency he hired in connection with alleged attempts to keep rape allegations from coming to light in her memoir — but the bulk of her claims have been dismissed unless she amends them.
In October of last year, McGowan sued Weinstein, lawyers David Boies and Lisa Bloom, and private intelligence agency Black Cube, claiming the former producer unleashed a cadre of “fixers” to make sure her rape allegations against him weren’t revealed in her 2018 book, Brave.
Four separate motions to dismiss the complaint were filed. On Monday, U.S. District Judge Otis D. Wright II denied the motions with regard to McGowan’s claims for fraudulent deceit and common law fraud and dismissed with leave to amend the rest of her claims, including those for violation of the RICO Act, civil conspiracy, wiretapping, invasions of privacy, conversion and intentional infliction of emotional distress.
“McGowan sufficiently alleges a plausible theory under which the Bloom Defendants, the Boies Defendants and Weinstein are vicariously liable for the fraud perpetrated by Black Cube’s agents,” Wright finds.
The theory she alleges is that Weinstein and Boies hired Black Cube, Bloom was brought on to help Boies oversee Black Cube’s work, and the defendants “engaged in numerous conversations and meetings regarding Black Cube’s progress in trying to obtain a copy of Brave, and that the unauthorized recordings and copy of the manuscript were shared with Weinstein, the Boies Defendants, and the Bloom Defendants for their review.”
To sustain a racketeering claim, a person must prove either a pattern of activity involving at least two acts within a period of 10 years (closed-ended conduct) or the threat of future repetition (open-ended conduct). Taking McGowan’s allegations as true for the purpose of this motion, Wright found the alleged scheme “had a single victim and a single goal — to protect Weinstein’s reputation by silencing and/or discrediting McGowan via wire fraud.” A single fraud with a single victim doesn’t “constitute a closed-ended pattern of racketeering activity,” explains Wright. Because the book was published, the risk of future criminal activity became moot and therefore she failed to allege a pattern of open-ended conduct.
Wright finds her wiretapping claim fails because the Electronic Communications Privacy Act focuses on why the recordings were created, not if they were created legally. “McGowan’s Complaint does not set forth any allegations that Defendants intended to or did blackmail, intimidate or commit any tortious act against McGowan with the recordings that Black Cube created,” writes Wright in the opinion, which is posted below. “Rather, McGowan’s allegations are, in essence, that Defendants committed various tortious acts for the ultimate purpose of preserving Weinstein’s public reputation.”
Wright isn’t convinced McGowan can prove her claims involving coercion and conversion, and finds claims for intentional infliction of emotional distress and negligent hiring and supervision were barred by the statute of limitations, but he can’t say for sure that any amendment would be futile. So she has 21 days to amend her complaint.
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