FILED: NEW YORK COUNTY CLERK 03/14/ :46 PM INDEX NO /2017 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 03/14/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY X GEORGE OUZOUNIAN, P/K/A MADDOX, and JESSICA BLUM, Index No / against - Plaintiffs', Hon. Charles E. Ramos Motion Seq. # 6 DAX HERRERA P/K/A DICK MASTERSON, FOUNDATION DIGITAL, LLC, GREG BOSER, LOREN BAKER, CMGRP, INC., D/B/A WEBER SHANDWICK, JOSHUA KAUFMAN, ASTERIOS KOKKINOS, TREVOR BIRT, PATREON, INC., and JORDAN COPE, Defendants X PLAINTIFFS' MEMORANDUM OF LAW IS SUPPORT OF MOTION FOR SANCTIONS, COSTS, AND ATTORNEYS FEES The Landau Group, PC 45 Rockefeller Plaza, Suite 2000 New York, New York (212) Attorneys for Plaintiffs ' George Ouzounian and Jessica Blum 1 of 14

2 TABLEOF CONTENTS PAGE(S) TABLE OF AUTHORITIES CITED 1 I. STATEMENT OF APPLICABLE FACTS. 1 A. JORDAN GREENBERGER, COUNSEL FOR DEFENDANT KOKKINOS. 1 B. MICHAEL MUNOZ, COUNSEL FOR WEBER SHANDWICK. 1 C. RESPONSIVE LETTER TO GREENBERGER AND MUNOZ. 2 D. GREENBERGER MARCH 14, 2018 LETTER. 6 II. LEGAL ANALYSIS. 6 A. THE IMPOSITION OF SANCTIONS, INCLUDING, COSTS AND REASONABLE ATTORNEY FEES, IS WARRANTED FOR MUNOZ AND GREENBERGER'S CONTUMACIOUS, HARASSING, AND FRIVILOUS CONDUCT. 6 III. CONCLUSION/RELIEF REQUESTED. I 2 of 14

3 CASES TABLE OF AUTHORITIES CITED PAGE(S) In re Beachboard, 263 N.Y.S. 492 (1st Dept.1933) 9 In re Hyman, 226 App.Div. 468, 469, 235 N.Y.S. 622 (13 Dept.1929) 9 Jalor Color Graphics, Inc. v. Universal Advertising Systems, Inc., 703 N.Y.S.2d 370 (N.Y. Cty. Civ. Ct. 1999) 7-10 Jalor Color Graphics, Inc. v. Universal Advertising Systems, Inc., 193 Misc.2d 76 (App.Term. 13 Dept. 2002) 7, 10 Matter of Glavin, 107 A.D.2d 1006, 484 N.Y.S.2d 933 (3rd Dept.1985) 9 COURT RULES AND STATUTES 22 N.Y.C.R.R [a] 6 22 N.Y.C.R.R (c)(2) 6 22 N.Y.C.R.R (c)(3) 6 SECONDARY AUTHORITY Joel Cohen and Sarah Diane McShea, Threatening to Contact the Criminal Authorities: A Lawyer's Dilemma, N.Y.L.J., October 26, 1999, at p. 1, col. 1-2, p. 4, col. 4-6 (citing cases) 10 3 of 14

4 I. STATEMENT OF APPLICABLE FACTS Currently, there are 4 separate Motion(s) to Dismiss pending before this Court, that have all been fully and separately briefed by the parties. Defendant Kokkinos' Kokkinos filed his Motion to Dismiss on January 6, (See Mot. Seq. #1; Dkt. #31.) Plaintiffs responded to this Motion on February 5, (See Dkt. #s ) Defendant Kokkinos reply to Plaintiffs opposition on February 13, (Dkt. # 78.) A. JORDAN GREENBERGER, COUNSEL FOR DEFENDANT KOKKINOS. Notwithstanding these pending motions, and having not raised any previous issue on the matter, on or about March 12, 2018, counsel for Defendant Kokkinos, Jordan Greenberger, sent counsel, to every party in this matter, a letter, expressly accusing Plaintiffs of offering material evidence in this matter, that was false, and that counsel for Plaintiffs violated Rule 3.3(a)(3) of the Rules of Professional Conduct. (See Ex. 1: Greenberger Letter, 3/12/2018.) Further, in this letter, Mr. Greenberger accused "Mr. Ouzounian" one of the plaintiffs in this matter, of "committing perjury (a crime)" and accusing "Mr. Ouzounian [of] also commit[ing] the crime of criminal impersonation. N.Y. Penal Law " (See Ex. 1, p. 2.) In this letter, Mr. Greenberger then claimed that counsel for Plaintiffs was required to take remedial measures, consisting of disclosure to the Court. (Ex. 1, p. 2.) Mr. Greenberger provided Plaintiffs with 5 days to disclose the foregoing issues with the court, "In light of the pending motions." (See Ex. 1, p. 2.) B. MICHAEL MUNOZ, COUNSEL FOR WEBER SHANDWICK On or about January 10, 2018, Defendant Weber Shandwick filed its Motion to Dismiss. (See Mot. Seq. # 3; Dkt. #37.) Plaintiffs filed their response in opposition of Defendant Weber Shandwick's Motion to Dismiss on March 8, (See Dkt. #98.) Defendant Weber Shandwick 1 4 of 14

5 and Plaintiffs entered into a stipulation extending Defendant Weber Shandwick's time to Reply until March 27, (See Dkt. # 103.) Notwithstanding the foregoing, and having never raised any issue previously on the matter, counsel for Defendant Weber Shandwick, Michael M. Munoz, submitted a letter on March 13, 2018, which he sent to counsel for everyone, joining in on Mr. Greenberger's accusations. (See Ex. 2: Munoz Letter, 3/13/2018.) In this letter, Mr. Munoz also accuses Plaintiffs and their counsel, of knowingly making misrepresentations in affidavits, filed with the Court; and of continuing to "mislead the Court and the parties in sworn affidavits." (See Ex. 2, p. 1.) Further, Mr. Munoz joined in on Mr. Greenberger's demand, and threatened that if remedial actions were not taken, that Weber Shandwick would seek sanctions" and that Weber Shandwick was "evaluating our remedies for this deception, above and beyond whatever corrective measures you take at this time." (Ex. 2, p. 2.) Therefore, Mr. Munoz implicitly threatened counsel for Plaintiffs, and the Plaintiffs themselves, that essentially, if Plaintiffs did not dismiss their case against Weber Shandwick that they would pursue other remedies, which could only consist of taking criminal action against Plaintiffs, and their counsel, and/or filing a grievance against counsel for Plaintiffs. C. RESPONSIVE LETTER TO GREENBERGER AND MUNOZ. On or about March 13, 2018, counsel for Plaintiffs sent Mr. Munoz and Greenberger a responsive letter addressing their ridiculous correspondence from March 12 and 13, respectively. (Ex. 3: Landau Letter, 3/13/2018.) 2 5 of 14

6 In this letter, Mr. Landau explained that their contentions were disingenuous, and approach unbecoming. (Ex. 3, p. 1.) Further, Mr. Landau suggested that Mr. Munoz and Greenberger perform some badly needed research before making such accusations. (Ex. 3, p. 1.) Moreover, Mr. Landau stated as follows: The audacity you have of sending a letter like that to counsel for everyone, threatening baseless criminal charges during an active civil litigation, is outrageous, defamatory, and tantamount to an admission of unethical conduct by each of you individually and collectively. Further, Mr. Landau explained to Munoz and Greenberger that their letters and accusations of violating the criminal law, and committing ethical violations, was done for no other purpose than to gain an advantage in this case, given their clients extraordinary amount of liability, and that they were the ones that had violated the Rules of Professional Conduct by sending such a letter: It appears to have been concocted for no other purpose than to obtain an advantage, namely, because of the extraordinary amount of liability your clients face. See Rule 3.4(e) of the New York Rules of Professional Conduct, which prohibits lawyers from threatening criminal charges solely to obtain an advantage in a civil matter ("present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.") (See Ex. 3, p.1.) Further, Mr. Landau explained to Munoz and Greenberger that they were simply incorrect about the criminal charges they claimed Mr. Ouzounian purportedly violated, namely, because a defendant cannot be convicted of criminal impersonation without proof that he assumed the identity is of a real person citing People v. Sadiq, 236 A.D.2d 638 (2nd (2 Dept. 1997). See People v. Debranche, 38 Misc.3d 872, 874 (Crim. Ct. N.Y Cty. 2012) (criminal impersonation requires that a "real person" have been impersonated.) (See Ex. 3, p. 1-2.) 3 6 of 14

7 Further, Mr. Landau fully refuted all of the nefarious accusations made by both Munoz and Greenberger in full. For instance, Mr. Ouzounian submitted an affidavit in response to Weber Shandwick's Motion to Dismiss, identifying himself as the "Heather" indicated in the Complaint (See Dkt. # 101), and that this "Heather" persona was not a real person, and had been identified as such in the complaint. (Ex. 3, p. 2.) Mr. Landau fully explained that, in his Complaint, Plaintiff pled, among other things, that Kokkinos and Weber Shandwick were aware of what Kokkinos was doing, that Plaintiff was among the people that contacted Weber Shandwick to inform them of his conduct and actions, and that Kokkinos identified "Heather" prior to the complaint even being filed. See Compl., 70-71: "Subsequently, Defendant Kokkinos made a post on the Dick Show Reddit page, where he acknowledged that Weber Shandwick had knowledge of what he was doing, and that they had been contacted about it at least 3 times:" o 'Maddox could, of course, also apologize! People at Madcast Media have contacted one of my employers THREE different times now, trying to get me in trouble for my affiliation with a comedy show. He can apologize for that. (Compl., 70.) "Defendant Kokkinos also indicated in this Reddit post that if Plaintiff did not apologize to him, that he would exert ruthless revenge upon him, even referring to Plaintiff directly:" o 'Or, I can devote a fucking month of my life to hiring artists, finding a publisher that will successfully chart on the NYTimes Bestseller List, writing a book called Tales," SPITE!" "Classic Cuckmas and putting it out there...for Ball's in your George!"' court, (Compl., 71.) Further, in his Complaint, Plaintiff pled that: "Upon receipt of the information, rather than the company taking internal action, Kokkinos' it supported, or at the very least, condoned, the Defendant behavior, informing its employee, who then doubled-down on his crusade against the Plaintiffs." (Compl., 88.) by 4 7 of 14

8 It is apparent that Weber Shandwick notified Defendant Kokkinos of the complaint, since after the General Counsel was made aware, Defendant Kokkinos wasted little time in demanding an "apology" from the Plaintiff and then when it was not received, he increased the disgusting conduct illustrated herein. (Compl., 89.) (See Ex. 3, p. 2.) Further, in his letter, Mr. Landau advised Greenberger and Munoz, that their misrepresentations in their letters, conveniently failed to acknowledge, that in the subject Plaintiff's Complaint, Mr. Ouzounian did in fact identify himself as the person who made the complaints to Weber Shandwick, and that Defendant Kokkinos had even posted about it subsequently (before Plaintiffs complaint was even ñled), identifying Plaintiff "George" Ouzounian as the reporter "Heather" that had contacted Weber Shandwick: However, Weber Shandwick failed to take the requisite action, or protect the Plaintiffs' privacy, until such as an investigation, was conducted. Instead, Weber Shandwick effectively condoned Defendant Kokkinos conduct, and immediately told him about the complaints, whereupon Defendant Kokkinos posted about it, and promised to exact ruthless revenge against the Plaintiffs', and retaliate for the complaint, which he did, making everything much worse for the Plaintiffs'. (Compl., 196.) Recently, on October 24, 2017, Defendant Kokkinos, sent a tweet indicating that he had been provided with said s by Weber Shandwick, and that they had indicated to him that they were sent to Weber Shandwick by Plaintiff Ouzounian, posing as a reporter: Asterios KokkinOs Blocked chris, george pulled this same shit on me -- he pretended to be a reporter, ed my employer, and tried to get me fired. (Compl., l97.) (See Ex. 3, p. 3.) Accordingly, counsel for Plaintiffs informed Munoz and Greenberger that accusations and threats were baseless and despicable, and that if they did not recant such non-sense, a Motion for Sanctions would be filed accordingly. (Ex. 3, p. 3.) 5 8 of 14

9 D. GREENBERGER MARCH 14, 2018 LETTER. Instead of rectifying his misconduct, or recanting or apologizing, Greenberger equivocated, and doubled down on his threats against Plaintiffs, and their counsel, and claimed that he did not threaten to present criminal charges "solely" to obtain an advantage in a civil matter. (See Ex. 4: Greenberger Letter, 3/14/2018.) Further, Greenberger continued to press his threats of criminal prosecution against Mr. Ouzounian and stated that he was guilty of Penal Law (Ex. 4, p. 1.)Further, Greenberger claimed that he intended to notify the Court and seek "whatever relief is appropriate." (See Ex. 4.) II. LEGAL ANALYSIS. A. THE IMPOSITION OF SANCTIONS, INCLUDING, COSTS AND REASONABLE ATTORNEY FEES, IS WARRANTED FOR MUNOZ AND GREENBERGER'S CONTUMACIOUS, HARASSING, AND FRIVILOUS CONDUCT. Section (a) of the Rules of the Chief Administrator (22 N.Y.C.R.R [a] ) provides, in pertinent part, that: The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court... costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in this Part. In addition to or in lieu of awarding costs, the court, in its discretion[,] may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct. Frivolous conduct is defined as conduct which, inter alia, "is undertaken primarily to delay or prolong the resolution of the litigation or to harass or maliciously injure another." another. 22 N.Y.C.R.R (c)(2). In determining whether certain conduct is frivolous, the court shall consider: "[1] the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and [2] whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was party." brought to the attention of counsel or the 22 N.Y.C.R.R (c)(3). 6 9 of 14

10 In Jalor Color Graphics, Inc. v. Universal Advertising Systems, Inc., 703 N.Y.S.2d 370 (N.Y. Cty. Civ. Ct. 1999), upheld on appeal Jalor Color Graphics, Inc. v. Universal Advertising Systems, Inc., 193 Misc.2d 76 (App.Term. 13 Dept. 2002), an identical issue was presented, as the instant case. Here, the Court finds that defense counsel's letter threatening criminal prosecution was injure" "undertaken primarily to... harass or maliciously plaintiff and plaintiff s counsel, sufficient to impose sanctions upon defense counsel. 22 N.Y.C.R.R (c)(2). The import and tenor of the letter, coupled with defense counsel's prior announcement that he was a "former Assistant District Attorney for the State of New York," unmistakably conveys the bold impression that should plaintiff refuse or fail to abandon its already-tried civil claims, defense prosecutions." counsel will wreak havoc upon his adversaries by commencing criminal Jalor Color, 703 N.Y.S2d at 373. Impressions aside, the actual language used in the letter by Greenberger and Munoz, similar to the language and tenor in Jalor Color, notified Plaintiffs and Plaintiffs' counsel in no uncertain terms that defense counsel was not only "investigat[ing]" plaintiff s "commission" of certain specified, "extremely serious offenses" but that Plaintiff and his counsel had actually committed criminal offenses such as perjury, as well as ethical violations, and that "appropriate steps" would be taken to notify the Court "and seek whatever relief is appropriate." (See Ex. 4; and Ex. 1: "In short, if you do not take steps to remediate Mr. Ouzounian's conduct, then we intend to do so.") Therefore, Greenberger and Munoz's threats and accusations were clear, if Plaintiff OUzounian did not dismiss his lawsuit against them, or inform the Court that he committed perjury, and his counsel committed ethical violations, than criminal prosecution would be pursued against him; and Munoz and Greenberger would file a grievance, or take other action, such as filing criminal charges, against Mr. Landau, Mr. Ouzounian's counsel. "And, if the letter itself left any doubt about its threatening and coercive nature, the annexed copies of the Penal Law, highlighted by counsel for emphasis, effectively laid that doubt to rest. Defense counsel, having failed to put forth any defense at trial, was attempting to accomplish by 7 10 of 14

11 harassing threats what he was unable to accomplish at the trial itself, namely the dismissal of claims." plaintiffs breach of contract Jalor Color, 703 N.Y.S.2d at 374. This is identical to Munoz and Greenberger's threats and letters in the instant case. If Greenberger's letters left any doubt about its threatening and coercive nature, the annexed copies of the Penal Law, and Ethical Code, highlighted by counsel for emphasis, stating that Ouzounian had in fact committed such crimes, and Mr. Landau had violated the Rules of Professional Conduct, effectively laid that doubt to rest. Both Greenberger and Munoz, having failed to put forth a defense in their Motion(s) to Dismiss, were plainly attempting to accomplish by harassing threats what they will be unable to accomplish, namely the dismissal of Plaintiffs' Plaintiffs claims against them. As in Jalor Color, 703 N.Y.S.2d at 373, here: "[T]he threat was undertaken primarily to harass plaintiff into abandoning its claim and to otherwise maliciously injure plaintiff is clear from the critical, precipitous timing of the letter and the context in which it was sent. Counsel's threat was not an off-the-cuff remark made in the heat of battle without time for adequate reflection. Instead, the threat-which was never retracted, not even in hindsight-was made only days after the trial had ended and during a time when a verdict was pending. Further, the threatening letter must be considered in light of the prior letter written by defense counsel, in which he explicitly stated that any further "fraudulent demands for extortion" moneys will be considered and treated as fraudulent and/or and "will be promptly " added)." prosecuted (emphasis Here, the hearing on Kokkinos' Kokkinos Motion to Dismiss is scheduled for March 27, 2018, the very same day that Weber Shandwick's reply is due. The threats made by Munoz and Greenberger were undertaken entirely to harass Plaintiffs into abandoning its claims, and otherwise maliciously injury Plaintiffs, and their counsel, is clear from the critical and precipitous timing of the letters, and in the context in which they were sent. Greenberger and Munoz's threats were not an off the cuff remark made in the heat of battle, without the time for adequate reflection. Instead, they were made months after Motions to Dismiss had been filed, and opposed, and less than two weeks before the hearing on Kokkinos Motion to Dismiss of 14

12 Under these circumstances, the threatening and harassing letters of defense counsel were part of a calculated, deliberate strategy designed to harass Plaintiffs "into folding its litigation hand, lest the wrath" of Munoz and Greenberger, and their respective law firms, would be unleashed, and Plaintiffs would be prosecuted, and counsel for Plaintiffs would be reported to the bar. See Jalor Color, 703 N.Y.S.2d at The conduct of defense counsel, Greenberger and Munoz, crosses the line and cannot be tolerated by the Court. Although the Court is not required to make any finding as to whether defense counsel violated any of the pertinent Disciplinary Rules, or whether defense counsel should be otherwise disciplined, it is noteworthy that the Code of Professional Responsibility Disciplinary Rule 7-105(A) (22 N.Y.C.R.R [a] ) provides that "[a] lawyer shall not present, participate in presenting or threaten to present criminal charges solely to obtain an advantage in a civil matter." See Jalor Color, 703 N.Y.S.2d at 374. Applying the foregoing rule, courts have not hesitated to discipline an attorney who has threatened criminal action against his or her adversary in a civil matter. Id See e.g. Matter of Glavin, 107 A.D.2d 1006, 484 N.Y.S.2d 933 (3rd Dept.1985) (Attorney's letter, sent on behalf of client, which suggests that attorney possesses authority to impose or withhold criminal sanctions and threatens the use of the criminal process to coerce the adjustment of a private civil claim violates the Disciplinary Rules and warrants censure); In re Beachboard, 263 N.Y.S. 492 (1st Dept.1933) (censure warranted where attorney sent his adversary a letter containing threat that unless small amount of money was immediately paid, attorney would present matter to district attorney on charge of larceny and embezzlement); In re Hyman, 226 App.Div. 468, 469, 235 N.Y.S. 622 (1" Dept.1929) (censure warranted where attorney sent adversary a letter stating that 9 12 of 14

13 " '[u]nless you show some substantial evidence of your willingness to compensate [plaintiff] for her injuries, I shall have no other alternative but to immediately criminally prosecute you for assault' "). See also Joel Cohen and Sarah Diane McShea, Threatening to Contact the Criminal Authorities: A Lawyer's Dilemma, N.Y.L.J., October 26, 1999, at p. 1, col. 1-2, p. 4, col. 4-6 (citing cases). Significantly, counsel for Plaintiff attempted to avoid the imposition of sanctions, and filing the instant motion, and gave defense counsel a reasonable opportunity to be heard and recant his previous threats, and yet, for reasons unknown to Plaintiffs, and the Court, defense counsel has decided to double down, and continue to threaten criminal prosecution, ethical violations, and other contumacious conduct if Plaintiffs refused to dismiss their complaint, or confess to perjury. "This Court, mindful of its overriding responsibility to "deter conduct that... inhibits the system" proper administration of the court (Gordon v. Marrone, supra, 202 A.D.2d at 111, 616 N.Y.S.2d 98), cannot countenance defense counsel's conduct. Sanctions must be imposed." See Jalor Color, 703 N.Y.S.2d at 375. Accordingly, Plaintiffs' respectfully request that their motion for an order imposing sanctions upon defense counsel, Munoz and Greenberger, and their respective law firms, be granted. In Jalor Color, 193 Misc.2d at 77, the First Department Appellate Term, held that the Court was not required to hold a formal evidentiary hearing before finding defense counsel's conduct frivolous, and imposing sanctions for making threats of criminal prosecution during the course of the underlying civil lawsuit as part of a calculated, deliberate strategy designed to harass plaintiff into folding its litigation hand. Further, the Court found that the Court did not abuse its discretion in directing defense counsel to pay sanctions of $7,500 to the Lawyer's Fund for Client Protection and attorney fees of $2,100 to plaintiffs counsel based upon his frivolous and vexatious litigation practices; threats of criminal prosecution made by defense counsel during the of 14

14 course of the underlying civil lawsuit were part of a calculated, deliberate strategy designed to harass plaintiff into folding its litigation hand. Jalor Color, 193 Misc.2d at 77. III. CONCLUSION/RELIEF REQUESTED. WHEREFORE, Plaintiffs respectfully requests that the Court Grant their motion in its entirety, and award sanctions against Greenberger, Munoz, and their respective law firms, in the maximum amount of $10,000.00; and reasonable attorneys fees and costs in the amount of $7, Dated: New York, New York March 14, 2018 Respectfully submitted, THE LANDAU GROUP, PC Kevin A. Landau, Esq. 45 Rockefeller Plaza, Suite 2000 New York, New York (212) Attorneys for Plaintiffs ' George Ouzounian and Jessica Blum of 14