Court Rejects RICO and Fraud Claims Against Reputation Management Company

From Murrey v. Minc, decided Friday by Judge Analisa Torres (S.D.N.Y.):

Plaintiff pro se, Stewart Murrey, brings claims against Defendants Aaron Minc, Minc Law, Domingo J. Rivera, Rivera Law Group, PLC, PRVT L.L.C., Elizabeth Jordan, Internet Reputation Control, Anthony Will, Digital Revolution LLC, Brandyourself.com, Inc., Tom Vitolo, Christian Tyron, and John Does 1–10 for violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"); California's unfair competition law (the "UCL"); and California's statutory and common law right of publicity; and claims for common law fraud and civil conspiracy….

{The following facts are taken from the [Complaint], which the Court accepts as true for purposes of this motion.}

Beginning in late 2016, a series of allegedly defamatory comments about Plaintiff were posted on the website www.cheaterreport.com …, along with photographs taken from Plaintiff's personal website, dating profiles, and social media platforms. These posts "consumed" all other search engine results for Plaintiff's name, which "severely harm[ed] his reputation and end[ed] his ability to earn money."  The comments on the Website ultimately led to Plaintiff's being arrested twice, once in 2017 and once in 2018, and Plaintiff's filing of two false arrest lawsuits, which were subsequently settled.

From 2017 to 2019, Defendants and others "solicited and received" thousands of dollars from Plaintiff to "remove online libel and rehabilitate [his] online reputation." Plaintiff alleges that although Defendants and others represented to him that they had no connection to the Website, they were actually in cahoots with the Website, "work[ing] illegally with other individuals and business entities operating and maintaining [the Website]" and giving "kickbacks to the Website's operators….

No dice on the RICO claim, the court held:

RICO defines [potentially actionable] "racketeering activity" as the commission of certain criminal acts under state and federal law, including wire fraud under 18 U.S.C. § 1343 and extortion under 18 U.S.C. § 1951. Here, Plaintiff's RICO allegations are based on defamation, wire fraud, and extortion.

Because "it is firmly established that defamation … do[es] not provide the requisite predicate for RICO violations," Plaintiff's allegations that Defendants published defamatory statements about him cannot serve as a predicate act for his RICO claim.

Moreover, Plaintiff cannot support his RICO claim with predicate acts of wire fraud because he has not alleged wire fraud with sufficient particularity. The heightened pleading requirements of Federal Rule of Civil Procedure 9(b) apply to RICO claims predicated on fraud. Therefore, Plaintiff must "specify the time, place, speaker, and content of the alleged misrepresentations, explain how the misrepresentations were fraudulent[,] and plead those events which give rise to a strong inference that [each] defendant[ ] had an intent to defraud, knowledge of the falsity, or a reckless disregard for the truth."

Plaintiff claims that Defendants and others (1) "intentionally flood[ed] the internet with misinformation that misdirects anyone reasonably searching for them to waste his or her time and resources and return to the state of despair that is, for those involved in this pattern of organized crimes, most profitable"; (2) intentionally misrepresented "on [their] website [and/or] to Plaintiff directly" that they "had nothing to do with," "strongly did not like," and "had no contact and or connections with" the Website "nor anyone and or any entity involved in operating and maintaining" the Website; (3) "intentionally concealed from Plaintiff that they would work with and transact with individuals and entities responsible for operating and maintaining the [Website] … to induce Plaintiff to pay for 'removal services'"; and (4) failed to uphold a promise to act in "good faith" and with "due diligence."

These allegations do not "adequately specify the statements [Plaintiff] claims were false or misleading … [or] state when and where the statements were made." Plaintiff also does not identify the particular statements each Defendant made. Even Plaintiff's most specific allegation, that Defendants communicated with Plaintiff "via multiple email, texts, and telephone" from February 2017 until August 2019, and "continued to intentionally misrepresent to Plaintiff that they had no connection with, much less did not support nor transact with those who host, operate and or maintain [the Website]," does not specify the fraudulent statements, which Defendant made the statement, or how each statement was made….

Finally, Plaintiff has not sufficiently alleged extortion…. Extortion is defined as the "obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." …

Here, Plaintiff does not allege any force or violence. Instead, he appears to allege that Defendants used fear, stating that "the 'removal business' enterprise component of the [alleged scheme] receives payments for removals of said lethal defamations." To the extent that Plaintiff is referring to a fear of reputational harm from allegedly defamatory statements, such a fear is insufficient to state an extortion claim under RICO. Conte v. Newsday, Inc. (E.D.N.Y. 2010).

But, Plaintiff's claims, when construed liberally, could be seen as an attempt to allege that victims of Defendants fear the economic loss that would result from the defamatory statements. A fear of economic loss can sustain a claim for extortion if the fear is that "nonpayment would result in preclusion from or diminished opportunity for some existing or potential economic benefit." The absence or presence of fear of economic loss "must be considered from the perspective of the victim, not the extortionist," and the plaintiff must show "that the victim reasonably believed: first, that the defendant had the power to harm the victim, and second, that the defendant would exploit that power to the victim's detriment."

Plaintiff has not sufficiently alleged an economic fear. Plaintiff does not claim that Defendants prevented him from going to other brand management firms to remove the defamatory statements, or that Plaintiff feared looking elsewhere because he believed Defendants would harm him. In fact, Plaintiff claims that he was not aware that Defendants had any connection to the Website when he contracted with them and, therefore, he could not have reasonably believed that Defendants would harm him if he did not hire them. Although Plaintiff argues in his opposition brief that "[D]efendants wrongfully communicated to [P]laintiff that if he did not pay them for their 'online reputation services,' his life, work and ability to earn money would be forever decimated by the anonymous defamation and ever-present threat of [the Website], thus instilling fear of harm if [P]laintiff did not pay their fee and hire him," no such threat is alleged in the [Complaint]. Therefore, Plaintiff has not sufficiently alleged extortion….

For similar reasons, the court rejected plaintiff's state law fraud and Unfair Competition Law claims. And it held that,

Plaintiff's claim for violation of the California right of publicity, based on the use of his name and image on posts on the Website fails as well. Claims based on the common law or statutory right of publicity require the plaintiff to show that the defendant "appropriated the plaintiff's name or likeness for commercial purposes." Therefore, Defendants would be liable only insofar as they personally posted about Plaintiff, and Plaintiff makes no non-conclusory allegations that Defendants did so. See [Complaint] (alleging generally, without factual support or specifying which Defendants acted, that Defendants "aggressively publish[ed] defamatory and knowingly false statements about him").

{Although Plaintiff originally brought a claim for defamation, he retracted that claim ….}