Labor & Employment Law Daily Actresses can move ahead with trafficking victims claim, but against Harvey Weinstein alone
Tuesday, April 23, 2019

Actresses can move ahead with trafficking victims claim, but against Harvey Weinstein alone

By Brandi O. Brown, J.D.

Other claims naming Weinstein, Miramax, Disney, TWC, and others, including a TVPA participation claim, RICO claims, and state-law claims, were dismissed because of insufficient allegations or untimeliness.

Allowing a group of actresses to proceed with their Trafficking Victims Protection Act (TVPA) claims against Harvey Weinstein, a federal court in New York joined other courts in the district in holding that the Act “extends to enticement of victims by means of fraudulent promises of career advancement, for the purpose of engaging them in consensual or, as alleged here, non-consensual sexual activity.” However, their TVPA participation cause of action and RICO and state-law claims could not proceed against any of the defendants, including Weinstein himself, the court held, granting the defendants’ motion to dismiss in part (Geiss v. The Weinstein Co. Holdings, LLC, April 17, 2019, Hellerstein, A.).

Consistent pattern of sexual assault. Harvey Weinstein and his brother co-founded Miramax in the 1970s and sold it to Disney in 1993, but retained leadership positions in the company after the acquisition. In 2005 the brothers left Miramax and Disney and founded The Weinstein Company (TWC).

According to the plaintiffs in this particular suit (one of several against the defendants arising from Weinstein’s notorious misconduct), Weinstein engaged in “predatory and sexually harassing behavior toward women” that followed a familiar pattern, with allegations of assaults and attempted assaults extending back to 1993 and through 2011. He arranged meetings with women purportedly to assist them with their careers, isolated them after they arrived (often in a hotel room), and assaulted (or attempted to assault) them once they were alone. According to the plaintiffs, Weinstein threatened to harm (or in fact did harm) their careers if they refused his advances. They also alleged that certain employees of Miramax, Disney, and TWC had knowledge of, facilitated, and covered up his actions.

Class action suit. The plaintiffs brought a class action (on behalf of two subclasses) against Weinstein, his former companies, and officers and directors of those companies alleging violations of the TVPA, RICO, and state law. Three individual defendants—including both of the brothers and one of the assistants—were named by both subclasses. They alleged that Weinstein’s assistant facilitated assaults by scheduling appointments with the victims and them moving those meetings to hotel rooms.

The other subclasses named additional defendants. For example, a production VP for Miramax allegedly “lured” victims to meetings in hotel rooms with Weinstein and then left. Another TWC employee, a VP in human resources, authorized a bonus for an employee who secured erectile dysfunction drugs for Weinstein and later destroyed evidence relating to Weinstein’s abuse, the suit contended. The defendants filed a motion to dismiss all claims.

Career “enticement” was actionable. Under the TVPA’s civil remedy provision, 18 U.S.C. sec. 1595(a), victims may bring an action against both a “perpetrator” or “whoever knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known has engaged in” a qualifying offense. The plaintiffs alleged that Harvey Weinstein violated 18 U.S.C. sec. 1591(a)(1), applicable to direct violators, by enticing women to attend meetings with him by promises that they would have a chance to work for him and then assaulted them.

Although Weinstein contended the alleged assaults did not constitute the “commercial sex acts” prohibited by the TVPA because they “did not result in the exchange of something of value,” the court rejected that argument, joining two other courts in the district. (In a January 2019 ruling, Judge Engelmayer allowed another Weinstein plaintiff to pursue some of her claims against TWC and a related corporate defendant, including a cause of action under the TVPA, after squarely rejecting the notion that the statute was inapplicable to the kind of factual scenario alleged here—piggybacking off the reasoning of Judge Sweet in yet another lawsuit against Weinstein and corporate defendants in the Southern District of New York).

Here, the court held that the TVPA “extends to enticement of victims by means of fraudulent promises of career advancement, for the purpose of engaging them in consensual or, as alleged here, non-consensual sexual activity.” Thus, the court denied Weinstein’s motion to dismiss the TVPA claims against him.

Participation claim dismissed. However, the court dismissed the TVPA claim against TWC and the individual defendants, citing the plaintiffs’ “failure to allege any benefits received by defendants from their participation” in the sex-trafficking venture. Aiders and abettors under the TVPA, the court explained, are only liable if they knowingly “benefit” from the trafficking by means of that participation. The participation that gives rise to the benefit, the court explained further, “must be participation in a sex-trafficking venture, not participation in other activities engaged in by the sex traffickers that do not further the sex-trafficking aspect of their venture.”

A causal relationship is required between the affirmative conduct that furthers the sex-trafficking venture and the receipt of a benefit, along with actual or constructive knowledge of that relationship. Thus, while TWC “undoubtedly benefitted from” Harvey Weinstein’s continued employment, the complaint failed to plead any fact that would support the conclusion that he provided those benefits to the defendant because of its facilitation of his sexual misconduct. To the contrary, Weinstein’s employment agreement stipulated that his conviction for sexual violence would be grounds for termination. Moreover, there were no allegations that any of TWC’s salaried directors or officers were paid for their participation in the assaults.

Consequently, the complaint failed to state a claim against the TWC defendants under the TVPA for participation.

RICO claims fail. With regards to the RICO claims against all defendants, the court concluded that the plaintiffs failed to allege injury to business or property that was caused by a RICO violation and, therefore, they could not establish standing. “Blacklisting,” the court explained, does not violate RICO.

State-law claims fail on procedural grounds. The plaintiffs’ state-law claims were untimely, and neither equitable tolling nor other doctrines excusing untimeliness applied here. The plaintiffs claimed that the defendants took affirmative steps to deter them from bringing suit, including hush payments, threatening text messages, and cover-ups. However, the court found this alleged conduct, “although reprehensible, did not use fraud, misrepresentation, or deception to prevent plaintiffs from filing suit.” The plaintiffs also said they feared retaliation if they commenced litigation, but their allegations in this vein did not “come close” to warranting duress tolling, or to the kind of intimidation that would bar the defendants from raising a statute of limitations defense.

Finally, a Jane Doe claim brought by a minor was dismissed without prejudice to asserting the claims once they became timely.

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