FFR is reviewing the February 1 hearing in the civil lawsuit, Sarah Edmondson et al., vs. Keith Raniere et al. This is part #6.
The first three focused on the financial targets of the suit, Clare and Sara Bronfman. The fourth dealt with Nicki Clyne, a defendant used to tie in Bronfman’s conduct with the NXIVM/DOS enterprise.
The 5th part dealt with how the complaint, which spans more than 200 pages and involves more than 70 Plaintiffs alleging 14 causes of action, is a shotgun complaint, where all plaintiffs accuse all defendants of all harms without distinguishing who did what to whom.
Judge Eric Komitee pointed out this is legal grounds for dismissal and discussed whether he would dismiss the complaint, but allow the plaintiffs to correct their complaint or dismiss with prejudice, and the case is over.
It seems he concluded he would offer the plaintiffs a chance to write a proposal on how they would revise their complaint to veer from shotgun.
The other defendants are Keith Raniere, Kathy Russell, Allison Mack, Danielle Roberts, and Brandon Porter. Raniere, Mack, and Russell are not mounting a defense. Clyne, Porter, and Roberts represent themselves pro se.
Judge Komitee read an 11th Circuit case dismissed because it was a shotgun.
“The amended complaint is an incomprehensible shotgun pleading. It employs a multitude of claims and incorporates by reference all of its factual allegations into each claim, making it nearly impossible for Defendants and the Court to determine with certainty which factual allegations give rise to which claims for relief. At 28 pages long… and having incorporated all 123 paragraphs of allegations into 16 counts, it is neither short nor plain.”
Judge Komitee pointed out that the 11th circuit case’s dismissed complaint at 28 pages was about one 10th the length of the NXIVM complaint.
THE COURT They [11th Circuit] conclude by saying “this is why we have condemned shotgun pleadings time and time again. And this is why we have repeatedly held that a district court retains authority to dismiss a shotgun pleading on that basis alone.”…
Maybe that the right thing is for me [is to] dismiss without prejudice…. but we would have to be solving problems like the shotgun pleading problem… this complaint is so long and the changes [needed] are so substantial… which we would seek…in an amended complaint…
The judge then veered to the forced labor complaint….
William E. Hoese, Esq. of Kohn, Swift & Graf, P.C. of Philadelphia spoke to this issue, which requires serious harm forcing the individual to perform labor.
HOESE:… the threat of serious harm is… the threat of release of collateral. And the complaint alleges that before people are induced… to become members of DOS, they were asked to give collateral, which was financial credit card authorizations… naked photographs, videos, letters.
THE COURT:… I understand there’s a threat to release the collateral…. that is a threat of serious harm. The 2nd Circuit said so in Raniere. I think that’s the law of the case. I don’t think… anybody’s disputing that. I think the question… is the Defendants threatened to release the collateral if what? And where is that in the complaint?… I’m not sure they said ‘if you don’t keep working for us for free, or below minimum wage… then we’re going to release the collateral,’ or maybe they did. But my question is the threat to release the collateral is predicated on what condition?
HOESE: My understanding was that –
THE COURT: I don’t want to hear your understanding, I’m sorry. I want the paragraph in the complaint.
HOESE: No, that’s fair, Your Honor. In the complaint… it says that the collateral is given… as a sign of loyalty to DOS and that the threat was that if you were disloyal or disavowed your vow, that you would have committed some kind of breach under NXIVM rules.
THE COURT: If you disavowed your vow?
HOESE: Yes, well, it was also called a vow, Your Honor.
THE COURT: But what’s the vow? The vow is to provide free labor?
HOESE: The vow was… to submit to a position as a slave to another woman in this organization, and essentially to be at their beck and call to do what they said, whenever they said it, and not to disobey.
And if you disobeyed, then… the stick was that “we would release this collateral.” Because if you think about it, Your Honor, why else would you have someone write a letter saying… true or false, ‘I was abused by someone in my family,’ and give that to somebody? It’s not the world I live in. But the threat was that again, if you were disloyal that this could be released. And that’s the serious harm.
THE COURT:… So you’re saying that the collateral becomes both a source of the coercion for the commercial sex act at the heart of Count 3(a) [sex trafficking] and it is also the threat of serious harm that is used to procure the labor or services that are the heart of Count 3(b)? [forced labor]
HOESE: I agree with that, Your Honor….
THE COURT: Okay, but so the collateral is serving two purposes at least there?
THE COURT:… But where [in the complaint] does it say that this collateral was used specifically to extract labor and specifically to coerce people into commercial sex acts? …Because you’ve got two paragraphs in here where people [Jane Doe 7 and Jane Doe 8.] actually say “I’m leaving”…. do you allege as to both that the collateral is in fact released for that violation of the vow?
HOESE: We don’t, Your Honor.
THE COURT: As to neither?
HOESE: As to neither.
THE COURT: Okay.
HOESE: However, I’d hasten to add that there was the threat of the release of the collateral, not the actual release of the collateral after the fact.
THE COURT: Okay, so then where is the threat described in those specific terms as a threat designed to coerce free labor or commercial sex acts….
HOESE: Paragraph 781. And I think this applies to more than just Ms. Clyne. “NXVIM used a concept known as collateral to enforce with the creators of DOS some sort of ethical conduct. Under Raniere’s teachings, a person who is honorable and they were trying it uphold his word should be happy to collateralize his word in a demonstration of good faith.”…
THE COURT: There’s a step in the logic that I think you need to make, which is you’re collateralizing your word and part of your word was ‘I’ll work for free. I’ll engage in commercial sex act.’… Where is the allegation that that is part of what we mean when we say quote unquote his word?
HOESE: Well, let me draw the Court’s attention to paragraph 787. “Most importantly, collateral was the key to get admission into DOS. Recruits were required to provide deeds to property and confidential information about themselves, family members, or employers, who were encouraged to lie if the information provided was not scandalous enough to merit Raniere’s approval.” That’s more towards the serious harm….
THE COURT: Is there anywhere in here [the complaint] where somebody’s threatened, “hey, if you stop working for free, providing this ‘slave labor,’ we will release your collateral’ such that we know that the collateral is serving that purpose in the forced labor context?… That ‘you’ll either provide labor or engage in the commercial sex acts, [or] the collateral will be released.’
MR. HOESE: … with respect to Ms. Clare Bronfman … certain Plaintiffs and others wrote to her and others explicitly describing the collateral and beseeching her and others for its return.
THE COURT:… I’m not questioning that this is extraordinarily sensitive and painful for anybody who finds themselves in that position…. I just want to understand the extent to which the linkage is made explicit or whether it remains implicit that… the reason people provided the labor… and the commercial sex acts alleged is that that was caused…by the collateral.
HOESE:… I think it’s inferential… why would I write to one of the inner circle, and beseech them to return this material if I wasn’t operating under the belief that it was going to be released?…
THE COURT: I’m not questioning that they had a legitimate concern that the collateral would be released, but… those [forced labor] services have to be obtained by means of the use of the threat of serious harm… I’m just trying to understand if it’s sort of an inference…. or if it says here somewhere explicitly… Victim X only did this work that was referred to as slave labor because she had provided collateral and was concerned about its release or Victim Y, who engaged in what we’re calling commercial sex acts in this case did so only because or in part because she was concerned about the release of the collateral….
Aarthi Manohar Esq. of Kohn Swift & Graf, answered the question.
MANOHAR:… paragraph 802… states “recruits have expressed interest in joining DOS were again required to submit collateral to become members. Once they became members the ‘slaves’ were routinely required to provide more collateral with the understanding that if they ever attempted to leave… or failed to comply with the expectations of them as slaves including the demands for more collateral, the collateral already provided would be released.” The expectation of the slaves would be that they would be performing labor.
THE COURT: Yes, and doing everything their masters told them, correct.
MS. MANOHAR: Correct.
THE COURT:… I think that’s what was what I was looking for. Okay. All right, Ms. Clyne, do you want to be heard on the forced labor predicate act?
CLYNE: Yes, Your Honor.
THE COURT: Just briefly.
CLYNE: Just quickly, [paragraph] 171 says “as a result of” capital D “Defendants criminal acts, misrepresentations and omissions, Jane Doe 8 was emotionally and financially harmed” and then same thing, [paragraph] 172, “performed uncompensated labor working for many hours without compensation for the benefit of the Defendants.” Again, I’m not clear if that’s supposed to be for me, or if the implication is that because she’s in DOS, now she’s performing labor for Sarah Edmondson at the Vancouver Center…. Because I was never involved in, you know, her life in Vancouver. So I’m not clear as to if that’s a general allegation or if I’m included.
THE COURT: Okay.
CLYNE: Or if it’s specific to me.
THE COURT: Yeah, well, the [Plaintiffs] are going to put in a letter that tells me whether or not they wish to amend the complaint to add additional specifics. And that would be something they’ll tell us they do or do not want to clarify.
Stay tuned for Part #6, where we hear from Danielle Roberts and Brandon Porter.