FILED: NEW YORK COUNTY CLERK 02/12/ :02 PM INDEX NO /2017 NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 02/12/2018

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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 -, Hon. Charles E. Ramos Motion Seq. # 2 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 PLAINTIFF'S CROSS MOTION TO DISMISS AND FOR DISCOVERY ON PERSONAL JURISDICTION, PURSUANT TO CPLR 3211(D); AND MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS HERRERA, FOUNDATION DIGITAL AND BOSER, MOTION TO DISMISS, PURSUANT TO CPLR 3211(A)(7) AND (8) The Landau Group, PC 45 Rockefeller Plaza, Suite 2000 New York, New York (212) Attorneys for Plaintiffs ' George Ouzounian and Jessica Blum 1 of 31

2 TABLEOF CONTENTS PAGE(S) TABLE OF AUTHORITY CITED i-iii I. STATEMENT OF APPLICABLE FACTS. 1 A. Defendant Dax Herrera's Is Conducting Business In New York. 1 B. Actions Taken By Herrera Subsequent To The Instant Lawsuit Being Filed. 3 C. Invasion of Privacy, False Advertising, Defamation, and other Tortious Acts By Herrera and Kokkinos. 3 Asterios' D. Defendant Kokkinos, Is Defendant Herrera's Co-Conspirator. (See Compl., at 54.) 5 E. "Cuckmas Carols: Bald-Headed Lies" By "Santa Cuck." 5 F. Statement From Trevor Birt And Creation Of ("Madcucks"). 7 G. Defamation and campaigns towards Plaintiff Ouzounian's recent book. 8 H. DEFENDANT FOUNDATION DIGITAL. 8 II. PLAINTIFFS HAVE MADE A SUFFICIENT START IN SHOWING THAT FURTHER DISCOVERY ON THE ISSUE OF PERSONAL JURISDICTION OVER THESE DEFENDANTS IS WARRANTED. 9 III. PERSONAL JURISDICTION IS ESTABLISHED AGAINST FOUNDATION DIGITAL, PURSUANT TO CPLR 302(A)(1) and (2). 12 IV. PERSONAL JURISDICTION IS ESTABLISHED AGAINST DEFENDANT HERRERA, PURSUANT TO CPLR 301, 302(A)(1) and (2). 14 V. DEFENDANTS HAVE WAIVED ANY ARGUMENT RELATIVE TO SERVICE. 16 VI. FORUM NON CONVENIENS HAS NO APPLICATION TO THIS CASE. 16 VII. PLAINTIFFS COMPLAINT SHOULD NOT BE DISMISSED PURSUANT TO CPLR 3211(A)(7). 18 (i) Applicable Standard of Review. 18 A. PLAINTIFFS' HAVE STATED A CAUSE OF ACTION FOR INVASION OF PRIVACY, AND FOR INJUNCTIVE RELIEF, PURSUANT TO CIVIL RIGHTS 2 of 31

3 LAW 50 and 51, AGAINST DEFENDANTS. 18 B. PLAINTIFFS' HAVE STATED A CAUSE OF ACTION FOR DEFAMATION AGAINST DEFENDANT HERRERA. 20 C. PLAINTIFFS' HAVE STATED A CAUSE OF ACTION FOR MISAPPROPRIATION AND UNFAIR COMPETITION. 21 D. PLAINTIFFS STATED CLAIMS FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AGAINST DEFENDANT HERRERA. 22 E. PLAINTIFFS' HAVE STATED CLAIMS FOR TORTIOUS INTERFERENCE WITH A CONTRACT; AND BUSINESS RELATIONS 23 F. PLAINTIFFS HAVE STATED A CLAIM FOR CONVERSION. 24 G. PLAINTIFFS STATED CLAIMS FOR FALSE ADVERTISING, AND DECEPTIVE AND MISLEADING BUSINESS PRACTICES (GBL ). 24 VIII. CONCLUSION/RELIEF REQUESTED of 31

4 CASES TABLE OF AUTHORITIES CITED PAGE(S) Advisory SA v. Bakrie Telecom PTE, Ltd., 62 N.Y.S.3d 1, 7-8 American BankNote Corp. v. Daniele, 845 N.Y.S.2d 266, 267 (1 Dept. 2017) 11 (1 Dept. 2007) 18 Bank of New York Mellon v. Scura, 961 NYS2d 185, 186 (2nd Dept. 2013) 16 Bernberg v. Health Mgt. Sys., Inc., 303 A.D.2d 348, 349 (2003) 23 Capin & Assn. v. 599 West 188th Street, 139 A.D.3d 634, 635 (2016) 23 Cerchia v. V.A. Mesa, Inc., 595 N.Y.S.2d 212 Dept. 1993) 11 Chloé v. Queen Bee of Beverly Hills, LLC,, 616 F.3d 158, 165 (2nd Cir. 2010) 14 Cohen v. Google, Inc., 887 N.Y.S.2d 424, 426 (1 Dept. 2009) 21 Cuccioli v. Jekyll & Hyde Neue Metropol Bremen Theater Produktion GmbH & Co., 2001, 150 F.Supp.2d 566, 572 (SDNY 2001) 16 Daly v. Metropolitan Life Ins. Co., 782 N.Y.S.2d 530, 536 Dept. 2004) 17 Expert Sewer and Drain, LLC v. New England Mun. Equip. Co., (2nd 964 N.Y.S.2d 597, 598 (2 Dept. 2013) 10 Fischbarg v. Doucet, 9 N.Y.3d 375, 377 (2007) 14 Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275 (1977) 19 K.T. v. Dash, 37 A.D.3d 107, 109 (1st Dept 2006) 18 Leon v. Martinez, 84 N.Y.2d 83, 87 (1994) 19 Leser v. Penido, 879 N.Y.S.2d 107, 108 (1st Dept. 2009) 21 Leviston v. Jackson, 980 N.Y.S.2d 716, 719 Dept. 2013) 18, 20 Liberman v. Gelstein, 80 N.Y.3d 429, 436 (1992) 21 LinkCo, Inc. v. Fujitsu Ltd., 230 F.Supp.2d 492, 502 (S.D.N.Y.2002) of 31

5 Macy's Inc.,,.v. v. Martha Stewart Living Omnimedia, Inc., 127 A.D.3d 48, 56 Dept. 2015) 22 McNamnee v. Clemens, 762 F.Supp.2d 584, 601 (EDNY 2011) 21 Mrs. U.S. Nat. Pageant, Inc. v. Miss U.S. Organization, LLC, 875 F.Supp.2d 211, (WDNY 2012) Mulberry St. Corp. v. Columbia Univ., 4 A.D.3d 49, 57 (2004) 22 M.V.B. Collision v. Allstate Ins., 728 F.Supp.2d 205, 220 (EDNY 2010) 24 Onassis v. Christian Dior, 472 N.Y.S.2d 254, 260 Dept. 1984) Nader v. General Motors Corp., 25 N.Y.2d 560, 569 (1970) 22 Parke-Bernet â Galleries v. Franklyn (26 N.Y.2d 13 (1970) 14 Penguin Group (USA) Inc. v. American Buddha, 640 F.3d 497, 501 (2nd Cir. 2011) Peterson v. Spartan Industries, Inc., 33 N.Y.2d 463, 467 (1974) 12 Salomone v. Macmillan Pub Co., Inc., 411 N.Y.S.2d 105, 110 Dept. 1978) 20 Scutti Ent., LLC. v. Park Place Ent. Co., 322 F.3d 211, 215 (2nd Cir. 2003) 24 Shmueli v. Corcoran Group, 802 N.Y.S.2d 871, Dept. 2005) 25 Sporn v. MCA, 58 N.Y.2d 482, 489 (1983) 24 Taylor Devices, Inc. v. Walbridge Aldinger Co., 538 F.Supp.2d 560 (WDNY 2008) 13 Thyroff v. Nationwide, 8 N.Y.3d 283, 292 (2007) 24 Unigraphic, Inc. v. Star Wars Corp., 435 N.Y.S.2d 19, 20 Dept. 1981) Vacco v. Lipsitz, 663 N.Y.S.2d 468, 476 Dept. 1997) 25 STATUTES AND COURT RULES Civil Rights Law 50 and CPLR 308(2) 16 CPLR 3211(d) 10 GBL of 31

6 George Ouzounian (p/k/a Maddox) (hereafter, "Ouzounian") and Jessica Blum "Plaintiffs" ("Blum") (collectively, "Plaintiffs"), through their attorneys the Landau Group, PC, respectfully submit this Cross Motion, pursuant to CPLR 3211(d), and their opposition to Defendants' Defendants Dax Herrera (p/k/a Dick Masterson) (hereafter, "Herrera"), Greg Boser ("Boser"), and Foundation (" Digital, LLC ("Foundation Digital" Digital") (collectively, "Defendants" "Defendants"), Motion to Dismiss, pursuant to CPLR 3211(a)(7) and (8). I. STATEMENT OF APPLICABLE FACTS A. Defendant Dax Herrera's Is Conducting Business In New York. Defendant Dax Herrera ("Defendant" or "Herrera"), is an individual residing in or around Los Angeles California, conducting business in New York.. (Compl., at 3.) Defendant Herrera, with the other defendants' defendants herein, have used the Dick Masterson persona, across social media and the internet (Twitter, Facebook, You Tube, I-Tunes), to create a lucrative business, based on creating violent and hateful content directed at, and against, thereby encouraging and inciting their listeners and followers, to threaten, stalk, harass, defame, and interfere with all aspects of Plaintiffs personal, and professional lives. (Compl., at 24.) Defendant Dax Herrera is a published author, operating and conducting business in New York, under the pen name "Dick Masterson", with a publishing contract with Simon and Schuster, located at 1230 Avenue of the Americas, New York, New York, (Ouzounian Aff., at 8.) The character created by Herrera, "Dick Masterson" which his book, and Patreon podcast, "Why Men Are Smarter Than Women" and "The Dick Show", respectively, are based on, and which he uses to generate his revenue on Patreon, was created in New York City, and the copyright of the name is owned, by New York publisher Simon & Schuster, located at 1230 Avenue of the Americas, New York, New York, (See Ouzounian Aff., at 9; Exhibit 6 of 31

7 Two thereto.) Further, Herrera operates under the name "Dick Masterson", and the copyright of his book is in Dick Masterson's name, not Dax Herrera's, with Simon and Schuster at 1230 Avenue of the Americas, New York, NY (See Ouzounian Aff., at 10; Ex. 3, thereto.) Further, the Authorship on Application of the book "Men Are Better Than Women", registered with the United States Copyright Office, is "Dick Masterson" at 1230 Avenue of the Americas, New York, New York, (See Ouzounian Aff., at l l; Ex. 3.) Further, the majority (if not all) communications, and statements, made about Plaintiffs on Herrera's podcast are in the name of Dick Masterson, not Dax Herrera. In fact, the show is called "Dick Masterson is creating The Dick Show." (See Ouzounian Aff., at $11.) Likewise, Dick Masterson has his own website for his book, the book is currently being sold on this website, and is linked to his Patreon page, where the book is also sold, in addition to other merchandise. Further, this book can currently be bought on Simon and Schuster's website, out of New York. (Ouzounian Aff., at 12.) Moreover, Plaintiff Ouzounian annexed relevant pages from his own publishing contract which he believes contains the same, or very similar, provisions as Herrera/Masterson's agreement. (See Ouzounian Aff., at $13; Ex. Four) These provisions state that Jurisdiction "is hereby vested in the federal and state courts sitting in New York County, New York, and the applicable law for this agreement states that it "shall be governed by the laws of the State of New York." (Ouzounian Aff., at $13; Ex. 4, p ) Moreover, Herrera's editor, with Simon and Schuster, is Mr. Jeremie Ruby-Strauss, who is Ouzounian's editor, who Herrera contacted by , immediately after being served with the lawsuit in this matter, on or about November 14, Mr. Ouzounian was ce'd to this communication. (Ouzounian Aff., at 15; Ex. 6.) Further, Herrera solicits money, and operates, under the Dick Masterson name on his Patreon page for his podcast, to hundreds of New York residents, which pay him substantial 7 of 31

8 sums of money, on a recurring monthly basis, and is is currently generating over $22, a month, from over 3, 000 "patrons." (Ouzounian Aff., at 14; Ex. 5.) B. Actions Taken By Herrera Subsequent To The Instant Lawsuit Being Filed Moreover, subsequent to the instant lawsuit being filed, and served on Herrera (and after multiple stipulations between the parties to extend the time to answer, and the instant Motion to Dismiss being filed), he has continued his harassment campaigns against Plaintiffs, and continues to target them, and post defamatory, racist, misogynistic, and other hateful content throughout social media, and on his podcast. (Ouzounian Aff., at 14.) C. Invasion of Privacy, False Advertising, Defamation, and other Tortious Acts By Herrera and Kokkinos. Defendant Herrera, participated with co-defendant Asterios Kokkinos in the podcast entitled "The Dick Show", whose reach spans across social media and the internet (Patreon, Twitter, Facebook, You Tube, I-Tunes, BandCamp). The Dick Show prides itself on the creation of hateful content and violent suggestions, primarily devoted to the destruction of the reputation, privacy, safety and general consideration of basic rights we all enjoy, such as fundamental decency and privacy. Said defendants routinely encourage their listeners and followers, to threaten, stalk, harass, defame, and interfere with all aspects of the Plaintiffs personal, and professional lives. (See Compl., at 23, 24, and 32). Plaintiff Blum, was and as of the date of this motions, continues to be a target for said Defendants; often being a punchline or just victim of the show's constant vitriol, simply because she is a beautiful African American woman, and model, in a relationship with Mr. Ouzounian. (See Compl., at 30-31, 33, and the posts fully included therein, and attached hereto as Ex. Seven, and Eight, respectively.) Numerous examples of Defendant Herrera's targeted crusades against exist, replete with Defendants defamation, fraud, and encouragement. (See Compl., at 35.) In paragraph 35, 8 of 31

9 Plaintiffs alleged nearly 50 defamatory statements personally made by Herrera, against Plaintiff Ouzounian or Plaintiff Blum. (Annexed hereto as Exhibit Nine.) For instance, one of Plaintiff's major sponsors on his website was from a company called Harry's, Inc., which is a New York based company that Defendants Kokkinos and Herrera, in coordination with the latter's fans, spammed Harry's social media sites, with defamatory and outrageous accusations against Ouzounian, such as calling him a "liar, who supported rape." (Compl., at 26.) Plaintiff Ouzounian's claim is based on the harassment campaign, to destroy his relationship with Harry's by encouraging their fans to troll through Plaintiff's network looking for clips to take out of context, then in coordination with Defendants' Defendants fans, spamming Harry's social media sites, with defamatory and outrageous accusations against Plaintiff Ouzounian, including, in social media posts that he was a liar, who supported rape. Harry's terminated its agreement with Plaintiff on Jan. 9, 2017, as a result. (Compl., at ) Defendants' have also created Wikia and Encyclpedia Dramatica pages, which contain knowingly false allegations, including the existence of Ms. Blum having sexually transmitted diseases (STDs), such as "herpes", mental problems, homophobic and racist slurs, and a demeaning, and intentionally inaccurate story of Plaintiffs lives, for public consumption, with, photographs, and false advertising, without Plaintiffs permission or consent. (Compl., at 36.) Defendants have also had contests to stalk and harass. For instance, Defendants' held a billboard contest, wherein, Defendant Herrera asked his fans to send in designs of billboards to place near Plaintiffs house to harass and stalk him. (Compl., at 37.) Defendants have incited the practice of "doxing", which is the coordinated effort to incentivize their followers to uncover private information unique to the Plaintiffs, their family, and/or business associates. Defendants have featured the doxing technique against Plaintiffs, 9 of 31

10 routinely, for the sole purposes of harassment, and/or blackmail. (See Compl., at 38, and the examples cited in full therein.) Further, Defendants' Defendants Herrera and Kokkinos, have purchased multiple advertising campaigns on Reddit, and Facebook, targeting, and Plaintiff Ouzounian's followers directly, so that they unsubscribe from his podcast. (Compl., at $39.) (See Ex. 10.) Defendant Herrera is also using a caricature of Plaintiff, as the devil, in his posters and advertisements, to promote a live show he purportedly gave on October 13, 2017, whereby he sold tickets for $ (See Compl., at 42 posted in full therein; hereto as Exhibit 11). D. Defendant Asterios' Compl., at 54.) Kokkinos, Is Defendant Herrera's Co-Conspirator. (See Defendant Asterios Kokkinos ("Defendant" or "Kokkinos") is a Senior Copywriter at Weber Shandwick, residing in, and conducting business in New York, New York. (Compl. at 7.) Kokkinos has assisted the Dick Show in all aspects of its campaigns against, and created his own brand, and subsidiary business, from said campaigns and harassment. (Compl., at 60; see also Compl. at ) Kokkinos also created false advertising campaigns on Reddit against Mr. Ouzounian, to fraudulently misrepresent Plaintiff's brand, called "Madcast Fan Statement." (Compl., at 76.) (See also Compl., at 78 where postings were included, in full.) In other posts from June 4, 2017, Defendant Kokkinos continues to boast to fans about this campaign against Plaintiff, and states: "Well that sounds like it could break a certain platform's terms of service!" "it's made George scared and uncomfortable that this could hurt his book release. And that's enough for me." (See Exhibit 12.) E. "Cuckmas Carols: Bald-Headed Lies" By "Santa Cuck." Defendants Herrera and Kokkinos made an album using Weber Shandwick's equipment and distributed physical copies, as well as sold it on the internet. Such album was created by "Santacuck" (Kokkinos) and based around his vitriol, toward Mr. Ouzounian. (Compl., at 79.) 10 of 31

11 On February 16, 2017, Defendant Herrera stated on the Dick Show's Official Fan Forum, that: "Maddox is bragging about his 'bonus episode'. Do Dickheads wanna win at something else?" In response to this, a fan proposes certain vile things, in pertinent part, which Defendant Kokkinos responds to, in pertinent part, as follows: "Oh shit. This is a really fucking funny idea. I'm going to do this ASAP." (at Ex. 12.) Kokkinos then makes a series of related posts to update his fans on the progress of the album, with incentives to encourage its production. (See Ex. Seven.) On or about March 4, 2017, Kokkinos released his album, on I-Tunes entitled, "Cuckmas Carols: Bald-Headed Lies" by "Santa Cuck. Some of the songs, and lyrics from said songs, are transcribed in full at Exhibit 13, hereto. ' Another song from the album is entitled: "See You Next Cuckmas, Maddox!" On March 7, 2017, Kokkinos appeared on the Dick Show, to discuss and promote this album. A video of the show was uploaded to You Tube, and appears under the name: "Santa Cuck: Cuckmas Carols, The Dick Show". Further, on March 18, 2017, Billboard reported that the album was the number 7 best selling comedy album in the country. (Exhibit 14.) As such, Defendant Kokkinos participated, created, and incited, many of the campaigns, against during work hours, or after work, from Weber Shandwick's offices located in Manhattan, often using Weber Shandwick's equipment. (Compl., at $ 80.) Further, as demonstrated by the foregoing, the breadth and extent of Defendants' Herrera and Kokkinos' harassment campaigns against was extraordinary in scope and continues to the present. (Compl., at $ 82, 83, 90, ) For instance, Plaintiff Blum posted a You Tube video, 'from where the lyrics from each song on the album are transcribed, and where the album may be purchased, which is also linked to Kokkinos Patreon page, and other social media accounts. ' See URL: 11 of 31

12 and in response got bombarded with such terrible threats from Defendants' fans. (See Ex. 15, at 91 of Complaint.) F. Statement From Trevor Birt And Creation Of ("Madcucks"). On or about November 15, 2017, subsequent to this lawsuit being filed, and Defendant Herrera and Kokkinos, being served, their co-conspirator, and creation, Defendant Trevor Birt ("Madcucks"), made the following statement on the Dick Show fan forum Reddit page, annexed Statement" hereto as Ex. 16, which is this Statement in full (hereafter, "Birt Statement") Defendants' Herrera and Kokkinos, therefore, created a character called Madcucks, with Defendant Birt, based on an appalling caricature of Plaintiff Ouzounian. (Compl., at 95.) Over the past year Defendant Madcucks regularly appears on Herrera and Kokkinos' podcasts, and throughout their other social media platforms to promote Madcucks, and market his content to their followers. (See Ex. 17: where Kokkinos and Herrera are promoting Madcucks album, and defaming Plaintiff.) (See Compl., at 96.)3 96.) Madcucks always appears as a slovenly dressed, slow, dim witted individual, with a speech impediment common to people with down syndrome, and characteristics of a person with disabilities. (See Compl., at ) ) On or about March 7, 2017, Herrera (as Dick Masterson) made a post on the Dick Show Reddit page, advertising that the Madcucks v. Existence album was now available. (See Ex. 17.) Further, in this post, Masterson states that: "Madcucks vs Existence is the perfect episode if George [Plaintiff Ouzounian] were self-aware of what a joke he has become." Kokkinos immediately responds to this post, as follows: "FFFFFFUCK YES I AM BUYING THIS RIGHT THE FUCK NOW." (See Ex. 17.) Clearly, this was coordinated by Herrera and Kokkinos, to sell the Madcucks 3 See URL: of 31

13 album to their fans. In subsequent updates of this post, Defendant Kokkinos, explains that the Madcucks album, "Madcucks vs. Existence", reached number 2 on I-Tunes. (See Ex. 17.) G. Defamation and campaigns towards Plaintiff Ouzounian's recent book. Defendants' latest campaign against is to destroy the book that Plaintiff Ouzounian just came out with, on or about October 15, 2017, entitled "F*ck Whales." (Compl., at 105.) On or about October 19, 2017, Herrera personally and directly instructed his fans to leave negative reviews of Plaintiff's new book, "F*ck Whales." (Compl., at 106.) Defendant Herrera did this on Internet Relay Chat ("IRC"), a communication platform where he regularly chats and coordinates attacks with around 70 of his fans. Defendant Herrera's alias on IRC is "PeenWeinerstein:" (Compl., at 107.) Immediately following this directive, one of Herrera's fans, posted the review cited in Plaintiff's Complaint of Plaintiff's book on Amazon. (See Compl., at 108.) Defendant Herrera tweeted this false negative review to his other fans, and boasted about his harassment and defamation of Plaintiff's book, and has continued to encourage his fans to follow suit, to destroy Plaintiff's book, and the sales thereto. (Compl., at 109.) H. DEFENDANT FOUNDATION DIGITAL. Defendant Herrera is the co-founder, and Vice President of Foundation Digital, an SEO and marketing company. "SEO" is short for "Search Engine Optimization", which is essentially the process of affecting the online visibility of a website or a web page in a web search engine's unpaid results. (Compl., at 110.) Herrera has used his knowledge and understanding of SEO, and the technology, equipment, and servers, of Foundation Digital in the foregoing campaigns against, and in the content and revenues generated by said campaigns, including, in his podcasts, You Tube Videos, and various graphics and social media; and in targeting his campaigns, and the placement of said campaigns throughout social media and the internet, as 13 of 31

14 well as in inciting his fan base. (Compl., at ) Herrera is the Vice President of Technology, and the Co-Founder of Defendant Foundation Digital, LLC, a search engine optimization ("SEO") and marketing company, conducting business in New York, with clients such as Abra, ESPN and Disney. (Compl., at 3.) Defendant Greg Boser is the President and Co-founder of Foundation Digital, conducting business in New York. Defendant Boser has promoted and appeared on Herrera's podcast "The Dick Show". (Compl., at 4.) II. PLAINTIFFS HAVE MADE A SUFFICIENT START IN SHOWING THAT FURTHER DISCOVERY ON THE ISSUE OF PERSONAL JURISDICTION OVER THESE DEFENDANTS IS WARRANTED. Immediately after moving Defendants filed their instant Motion to Dismiss, Plaintiffs requested discovery on the personal jurisdiction issue, and fully explained to counsel for Defendants why discovery on this issue was appropriate, pursuant to CPLR 3211(d). Defendants refused Plaintiffs any discovery or information, and objected to every document requested by, and objected to the deposition of Defendant Herrera, on the personal jurisdiction issue. (See Defendants' Defendants objections and responses to Plaintiffs Discovery Requests, annexed hereto as Exhibit 18.) As demonstrated by the numerous facts outlined above, regarding Defendant Herrera's business contacts to New York, and the numerous acts he committed upon which lawsuit is based either through his company Foundation Digital or personally through his character "Dick Masterson" - or with a New York resident (Kokkinos) or New York company (Weber Shandwick) or against a New York company Harry's, Inc. or after he was served with this lawsuit and filed the instant Motion to Dismiss - not only is further discovery warranted on the personal jurisdiction issue, but it appears that personal jurisdiction is fully established against Defendant Herrera and Foundation Digital. 14 of 31

15 CPLR 3211(d) states as follows: "Should it appear from affidavits submitted in opposition to a motion made under subdivision (a) or (b) that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion, allowing the moving party to assert the objection in his responsive pleading, if any, or may order a continuance to permit further affidavits to be obtained or disclosure to be had and may make such other order as may be just." "In opposing a motion to dismiss pursuant to CPLR 3211(a)(8) on the ground that discovery on the issue of personal jurisdiction is necessary, a plaintiff need not make a prima facie showing of jurisdiction, but instead must only set forth a sufficient start, and show that its frivolous." position is not '[T]he jurisdictional issue is likely to be complex. Discovery is, therefore, desirable, indeed may be essential, and should quite probably lead to a more accurate affidavits." judgment than one made solely on the basis of inconclusive preliminary Expert (2nd Sewer and Drain, LLC v. New England Mun. Equip. Co., 964 N.Y.S.2d 597, 598 Dept. 2013) (internal citations omitted). In the instant case, as demonstrated by the foregoing, Plaintiffs have clearly made a sufficient start in showing that further discovery on the issue of personal jurisdiction over the moving defendants is warranted. Expert Sewer, 964 N.Y.S.2d at 599. (Affidavit from plaintiffs president established that facts might exist to support exercise of personal jurisdiction over defendant in action to recover damages for injury to property). Here, Plaintiffs have set numerous facts, including those set forth in the affidavit of George Ouzounian, which thoroughly explains Defendant Herrera's substantial business contacts to New York, including, being a published author under contract with Simon and Schuster, selling his book under the Dick Masterson name out of New York, through Simon and Schuster, and his own website, and the copyright of his book and name "Dick Masterson" being owned by Simon and Schuster, and that any disputes related to his publishing agreement (and book) must be filed in a court located in New York, under New York law. On its own, the facts established in Mr. Ouzounian's affidavit demonstrate that facts might exist to support personal jurisdiction over Defendant Herrera, which entitled to jurisdictional discovery under CPLR 3211(d). This, in conjunction with the allegations from Plaintiffs Complaint (which Defendants 15 of 31

16 have intentionally omitted from their Motion), and the other facts and exhibits annexed hereto, and to the affidavit of Mr. Ouzounian, and the affirmation of Mr. Landau, counsel for, is more than sufficient, to permit jurisdictional discovery in this case against Defendants Herrera and Foundation Digital. A litany of case law throughout New York supports this conclusion and relief. See Advisory SA v. Bakrie Telecom PTE, Ltd., 62 N.Y.S.3d 1, 7-8 Dept. 2017) (jurisdictional discovery had to be permitted as to nature of actual knowledge of parent company of telecommunications company and senior management and, and their responsibilities connected thereto.) See also Cerchia v. V.A. Mesa, Inc., 595 N.Y.S.2d 212 Dept. 1993) (Sales representative's allegations that clothing manufacturer breached oral agreement and transferred clothing line to affiliated corporation were sufficient to show that facts might exist to justify denial of affiliated corporation's prediscovery motion to dismiss on jurisdictional grounds). See Unigraphic, Inc. v. Star Wars Corp., 435 N.Y.S.2d 19, 20 Dept. 1981) (disclosure to enable resolution of the personal jurisdiction issue appropriate, where one of the California-based defendants would be an active defendant in action; New York would be an appropriate forum, and New York, as advertising center of country, would be convenient for those witnesses.) Here, as in Star Wars, much of the defamatory conduct, invasion of privacy, and tortious interference, actually occurred in New York, or was done in conspiracy with New York parties or against New York companies. For instance, the Santa Cuck album, was created and promoted by Kokkinos in New York, the Birt Statement verifies that Herrera and Kokkinos worked together for months using their respective companies technology and equipment to character the Madcucks character, and the content and attributes upon which this character, and products thereto, are based. 16 of 31

17 This is precisely the circumstances of the instant case, which the Court of Appeals envisioned in Peterson v. Spartan Industries, Inc., 33 N.Y.2d 463, 467 (1974). For instance, in Peterson, the plaintiffs it was established that the appellant applied for several permits and received permission to sell and store some of its products in New York, albeit some years before the event alleged in the complaint. 33 N.Y.2d at 467. Based on this, the Court of Appeals found that the plaintiffs had made a sufficient start, and shown their position not to be frivolous. Id. Here, Plaintiffs have produced significantly more evidence than that required by any of the foregoing authorities, and have therefore made a sufficient start, and shown their position not to be frivolous. Accordingly, Plaintiffs should have further opportunity to prove other contacts and activities of the moving defendants in New York as might confer jurisdiction under the long-arm statute. WHEREFORE, Plaintiffs respectfully request that the Court deny Defendants Motion to Dismiss, without prejudice, and allow Plaintiffs to conduct discovery on the personal jurisdiction issue. IIL PERSONAL JURISDICTION IS ESTABLISHED AGAINST FOUNDATION DIGITAL, PURSUANT TO CPLR 302(A)(1) and (2).. New York is a single transaction state for personal jurisdiction purposes relative to corporate parties, and Defendant Herrera is their co-owner, and is alleged to have used their equipment and technology in conjunction with Kokkinos, and Weber Shandwick's equipment and technology, to engage in the targeted harassment campaigns against Plaintiffs, and to create and promote their content and products using Plaintiffs name, image and likeness, specifically, as to the Madcucks character, and the Santa Cuck album. statute' CPLR 302(a)(1) "is a 'single act and 'proof of one transaction in New York is sufficient to invoke jurisdiction, even [if] the [defendant] never enters the state, so long as the [defendant's] activities [in New York] were purposeful and there is a substantial relationship 17 of 31

18 between the transaction and the claim asserted. Taylor Devices, Inc. v. Walbridge Aldinger Co., 538 F.Supp.2d 560 (WDNY 2008). Here, on or about November 15, 2017, subsequent to this lawsuit being filed, and Defendant Herrera and Kokkinos, being served, their co-conspirator, and creation, Defendant Trevor Birt ("Madcucks"), made the following statement on the Dick Show fan forum Reddit page: "...They [Herrera and Kokkinos] said using an advanced algorithm provided by Dick's company and utilizing data from the place Asterios worked at, they had calculated what fan had the right body type and wit to create a parody of Maddox. The first call took several hours but during it we laid out what would become the plan for Madcucks and how to develop the character over the next several months. It was made clear in that phone call that people couldn't know they had worked on it too, it had to seem grassroots. As part of the deal Dick provided me with 40 patreon bots to fake a bigger Patreon than Maddox over knows." the course of several months. Now everyone (Ex. 16.) Therefore, Defendants' Defendants Herrera (Foundation Digital) and Kokkinos (Weber Shandwick/New York resident), created a character called Madcucks, with Defendant Birt, based on an appalling caricature of Plaintiff Ouzounian, by using the technology and equipment of Foundation Digital over the course of several months. (Compl., at 95.) See Taylor Devices, Inc., 538 F.Supp.2d at 574 (Proof of one transaction in New York by nondomiciliary corporate defendant is sufficient to invoke jurisdiction under New York long-arm statute, even if defendant never enters the state, so long as the defendant's activities in New York were purposeful and there is a substantial relationship between the transaction and the claim asserted.) Here, the conduct and actions stated by Defendant Birt, is nearly identical as to what Plaintiffs alleged Foundation Digital of engaging in. (See Compl., at ) Accordingly, Foundation Digital has transacted business in New York, and admittedly engaged in tortious acts against Plaintiffs in New York, over the course of months. On its own, the Birt Statement verifies Plaintiffs causes of action for violations of Civil Rights Law 50-51, 18 of 31

19 and injunctive relief, (see Compl., at ); Misappropriation/Unfair and Deceptive Trade Practices and Unfair Competition, (see Compl., at ); Conversion, (see Compl., at ); and deceptive acts and misleading business practice in violation of General Business Law , (see Compl., ). See Chloé v. Queen Bee of Beverly Hills, LLC,, 616 F.3d 158, 165 (2nd Cir. 2010) (single act of an out-of-state defendant employee shipping an item into New York, combined with his employer's extensive business activity involving New York, gave rise to personal jurisdiction over the employee in New York.) Defendants cite to Fischbarg v. Doucet, 9 N.Y.3d 375, 377 (2007), which supports personal jurisdiction in this case as to the moving defendants. In Fischburg, the defendants were located in California and the plaintiff attorney was located in New York. The Court of Appeals determined that, over the course of approximately nine months, the defendants, through numerous telephone calls, faxes, mail contacts, and s, attempted to establish an attorneyclient relationship with the plaintiff to represent them in an action in the State of Oregon (id. at 380.) The Court of Appeals noted that it was the quality of the contacts with New York that was the primary consideration in determining whether a party transacted business within the meaning of New York's long-arm statute (id.). See also Parke-Bernet Galleries v. Franklyn (26 N.Y.2d 13 (1970) (the defendant, in California, "although never actually present, was receiving and transmitting bids over an open telephone line and was an active participant in an auction held" in New York by the plaintiff; and was directly assisted by another, present in New York (id.).) IV. PERSONAL JURISDICTION IS ESTABLISHED AGAINST DEFENDANT HERRERA, PURSUANT TO CPLR 301, 302(A)(1) and (2). In the instant case, Defendants Motion to Dismiss is principally based on the lack of personal jurisdiction, relative to Defendant Herrera and Defendant Foundation Digital. Defendants spend over 17 pages in their Memorandum rambling on about personal jurisdiction, 19 of 31

20 however, fail to refer to any allegations from Plaintiffs complaint, or simple facts, that render their instant Motion irrelevant, and bordering on frivolous, namely, that: (a) Herrera is a published author under contract with his New York City based publisher, Simon and Schuster, who writes and operates under the pen name "Dick Masterson"; said name and book is registered and owned by Simon and Schuster, at their New York location; and Herrera has the same book editor as Plaintiff Ouzounian, and sells his book through his New York publisher, and his own website, where he sells other merchandise and podcast subscriptions throughout New York, to New York residents; and his publishing agreement requires him to submit to jurisdiction in a New York courtroom, under New York law; (b) Defendant Herrera and Kokkinos are alleged to be co-conspirators, and Kokkinos is a New York resident, who works for Weber Shandwick, at its headquarters in Manhattan, where many of the harassment campaigns, false advertising, and content using Plaintiffs name, photograph and likeness are alleged to have been created using their technology and equipment, such as the Santa Cuck album, and the Madcucks character; (c) One of Herrera's targeted harassment campaigns was against Plaintiff Ouzounian's sponsors, and business associate: Harry's, Inc., which is a New York based Defendants' company, and Plaintiffs largest sponsor, until Defendants harassment campaign targeted them, and caused Harry's to terminate their relationship with Plaintiff Ouzounian; and (d) Subsequent to Defendant Herrera being served in this matter, and filing his Motion to Dismiss, and entering into stipulations with Plaintiffs, he has persisted with his harassment campaigns, threats, and other tortious and defamatory actions against, and has decided to turn his vitriol and harassment, against Plaintiffs counsel Kevin A. Landau, Esq., and his law firm, The Landau Group, PC, included making several defamatory statements against counsel for, and releasing embarrassing and private information of Mr. Landau, to his fans, as content for his show, and because he represents Plaintiffs in start" this matter. The foregoing is not only a "sufficient for personal jurisdiction, but actually establishes personal jurisdiction in this matter. The foregoing is more than sufficient to establish personal jurisdiction against Defendant Herrera in this case. In addition to the foregoing authorities cited in the preceding section, see also Mrs. U.S. Nat. Pageant, Inc. v. Miss U.S. Organization, LLC, 875 F.Supp.2d 211, (WDNY 2012) (New York owner of trademarks related to owner's beauty pageant business alleged sufficient facts for prima facie showing of personal jurisdiction over alleged trademark under New York's statute and Due Process See Penguin infringers, long-arm Clause.) Group 20 of 31

21 (USA) Inc. v. American Buddha, 640 F.3d 497, 501 (2" Cir. 2011) (for purposes of personal jurisdiction analysis pursuant to New York s long-arm statute, situs of publisher s alleged injury from publication of complete copies of publisher's copyrighted works on coordinated websites was New York.) See Cuccioli v. Jekyll & Hyde Neue Metropol Bremen Theater Produktion GmbH & Co., 2001, 150 F.Supp.2d 566, 572 (SDNY 2001) (personal jurisdiction over German theatrical company producing German version of American musical, being sued by performer in American version for appropriation of likeness in violation of New York statute, were satisfied.) V. DEFENDANTS HAVE WAIVED ANY ARGUMENT RELATIVE TO SERVICE. The process server s affidavit of service filed hereto, and annexed as an exhibit, is prima facie evidence of proper service pursuant to CPLR 308(2). Bank of New York Mellon v. Scura, 961 NYS2d 185, 186 (2" Dept. 2013). Further, the affirmation challenging service is from Defendants counsel, who failed to swear to "specific facts to rebut the statements" in the process server's affidavit. Id. As such, no hearing was necessary to determine whether the defendants were was properly served. Id. Further, the parties have entered into multiple stipulations extending the time to answer Plaintiffs complaint, and Defendants Motion to Dismiss. Further, Defendant Herrera is Foundation Digital s Co-Founder and Vice President, and a copy of the summons and copy was personally served on him at his residence, which is sufficient service under CPLR 311(1) ("upon any domestic or foreign corporation, to an officer, director..." (Affidavits of Service are Annexed hereto as Exhibit 19.) VI. FORUM NON CONVENIENS HAS NO APPLICATION TO THIS CASE. As demonstrated above, Defendants Herrera, and Kokkinos directed, or direct, numerous purposeful acts on a daily basis toward New York, conducted a substantial amount of business here, and clearly have sufficient minimum contacts, which weigh heavily in Plaintiffs favor for 21 of 31

22 personal jurisdiction purposes, and render any argument based on forum non conveniens as frivolous. Two of the main defendants in this action - Kokkinos and Weber Shandwick are New York residents, and both work in Manhattan. Further, Defendants Herrera and Kokkinos, could easily defend in New York, have substantial contacts here, and Defendant Kokkinos lives and works in New York City for Defendant Weber Shandwick. Further, Defendant Herrera's publishing deal, and copyright, for his book, and the character, Dick Masterson, was created, and are owned by his New York City Publisher, Simon and Schuster, pursuant to a publishing agreement under New York Law, and requires him to submit to a New York venue for any issues related thereto. Further, Plaintiff has an interest in litigating in the state where his, and Herrera's publishing deals are based, and where their editor and publisher, are located. Further, Defendant Kokkinos used his position at Weber Shandwick, and their technology and equipment, to target and harass Plaintiffs, and created his Patreon podcast and the "Madcucks" character, and his Santa Cuck album from a studio located at Weber Shandwick, in New York. Plaintiffs will want to personally inspect this equipment, test it, and depose certain employees from Weber Shandwick. Moreover, Defendant Foundation Digital is a virtual company, and has no brick and mortar office, and its president, and co-owner, Greg Boser, does not even live in California, and resides in Nevada. Likewise, Patreon, and Cope, are located in San Fransico, whereas Defendant Herrera, resides in Los Angeles, California. Therefore, with respect to the efficiency of the litigation, California and New York are equally convenient for the parties, and poses the same logistical issues, making that factor neutral, except to the extent that Plaintiffs choice of venue is always given significant weight. Accordingly, dismissal on grounds of forum non conveniens is not warranted in this case. See Daly v. Metropolitan Life Ins. Co., 782 N.Y.S.2d 530, 536 (1" (consumer' Dept. 2004) (consumer's 22 of 31

23 negligence action against New York insurer relating to identity theft, and insurer's third party action; were residents of state of Pennsylvania; consumer was New York resident when she applied for and obtained life insurance policy from insurer.) See American BankNote Corp. v. Daniele, 845 N.Y.S.2d 266, 267 Dept. 2007) (Dismissal for forum non conveniens was not warranted, in action brought by Delaware corporation, its New Jersey subsidiary, and its Argentinian subsidiary against former chief executive officer (CEO) of Argentinian subsidiary; courts in New York were fully capable of applying Argentinian law if it were found applicable.) See K.T. v. Dash, 37 A.D.3d 107, 109 victim' Dept 2006) (Dismissal of alleged rape victim's personal injury action against alleged rapist was not warranted on forum non conveniens grounds, although alleged rape took place in Brazil, where both parties lived and worked in New York, as did many proposed nonparty witnesses, including eyewitnesses, there would be no real burden on New York courts in hearing the claim.) VII. PLAINTIFFS COMPLAINT SHOULD NOT BE DISMISSED PURSUANT TO CPLR 3211(A)(7). (i) Applicable Standard of Review. On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at fail." law a motion for dismissal will Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275 (1977). When reviewing the pleadings, the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only theory." whether the facts as alleged fit within any cognizable legal Leon v. Martinez, 84 N.Y.2d 83, 87 (1994). A. PLAINTIFFS' HAVE STATED A CAUSE OF ACTION FOR INVASION OF PRIVACY, AND FOR INJUNCTIVE RELIEF, PURSUANT TO CIVIL RIGHTS LAW 50 and 51, AGAINST DEFENDANTS. In order to establish a claim under Civil Rights Law 50 and 51, a plaintiff must demonstrate that the defendant used the plaintiffs name, portrait, picture or voice in the State of New York for purposes of advertising or trade, without the plaintiff s written permission. See Leviston v. Jackson, 980 N.Y.S.2d 716, 719 Dept. 2013). "Civil Rights Law 51 authorizes a 23 of 31

24 civil action for injunctive relief and damages, including exemplary damages if a defendant acts protection." knowingly in violation of that Leviston, 980 N.Y.S.2d at Defendants argument is incoherent. Defendants assert five separate arguments in one page. (See Dkt. #21 Ds' Memo. of Law, p ) Here, as demonstrated above, Herrera misappropriated and used both Plaintiffs name, image and likeness, in a variety of ways, in New York, for purposes of advertising or trade, without Plaintiff's written permission. (Compl., at ) Further, Herrera directly led, or actively participated, in numerous other harassment campaigns, false advertisements using Plaintiffs name, and websites, and made threats, against both, which included encouraging fans to target and troll Plaintiff Ouzounian's book, and website, and to attack and threaten Plaintiff Blum, through appalling false advertisements of her, using her actual name, and photograph, without her permission or consent. (See Exs. 7, 8 and 11.) Further, Herrera actively encouraged, and incited, his fans to engage in the foregoing conduct against, and even offered inducements, and incentives, to his fans, to help him create said content. In Onassis v. Christian Dior, 472 N.Y.S.2d 254, 260 Dept. 1984), the 13 Department Appellate Division, eloquently stated what the purpose of the Civil Rights Law 50-51, was: "The principle to be distilled from a study of the statute and of the cases construing it is that all persons, of whatever station in life, from the relatively unknown to the world famous, are to be secured against rapacious commercial exploitation...[i]t is intended to protect the essence of the person, his or her identity or persona from being unwillingly or unknowingly another." misappropriated for the profit of Accordingly, Plaintiffs may seek redress under Civil Rights Law for Defendant Herrera' "rapacious commercial exploitation" of their name, image and likeness. Further, this court has repeatedly addressed that civil rights claims involving a possible protected form of free speech; or harmless humor or cruel and vicious derision, as being a factual question 24 of 31

25 for the jury. See Salomone v. Macmillan Pub Co., Inc., 411 N.Y.S.2d 105, 110 (1" Dept. 1978). See Onassis, 472 N.Y.S.2d at 260 The instant misappropriation, involves commercially exploiting Plaintiffs name, image, photograph, and likeness, to attract fans, and sell goods, such as: albums, merchandise, concert tickets, and access to listen to, and download, a podcast, as well as other content, which patrons pay monthly fees for. Whether the content at issue, is meant to be funny, or cruel, is particularly a factual question, left to the judgment of a jury. Further, the argument that Plaintiff Ouzounian may be a limited public figure, is also of no consequence. In Onassis, the public figure at issue was the former first lady, and one of the most famous and recognizable people in the world, and the court was clear, that: "as a public figure she has not forfeited her right of privacy and does not become a subject for commercial exploitation." Onassis, 472 N.Y.S.2d at 263. Such reprehensible conduct, and potentially criminal actions alleged herein, are not newsworthy, or entitled to any protection, under New York's Civil Rights Law 50-51, or the case law cited by Herrera. Instead, they are precisely the type of conduct that New York's Civil Rights Law proscribes, and immediately enjoins. See Leviston, 980 N.Y.S.2d at (Rap musician's posting of sexually explicit videotape, involving former girlfriend of his competitor in ongoing "rap war.") B. PLAINTIFFS' HAVE STATED A CAUSE OF ACTION FOR DEFAMATION AGAINST DEFENDANT HERRERA. At paragraph 35 of Plaintiffs Complaint, and annexed hereto as Exhibit 9, Plaintiffs set forth nearly 50 defamatory statements made by Defendant Herrera against Plaintiffs, which Defendants simply fail to address or challenge. Said statements included, but were not limited to: (12/15/2016) "I think Maddox's bitch girlfriend scrambled his brains." (12/16/2016) states 25 of 31

26 Maddox comes from an abusive family and has boundary issues; multiple statements that Maddox is dead broke, that his podcast is dying; (1/10/2017) states he was raised by gambling addicts; (11/29/2016) states that his podcast is dying and has "shitty merchandise" and "ripoff prices." (12/20/2016) states Maddox has autism, is a massive failure and delusional. Further, Defendant Herrera, created a harassment campaign, to destroy Plaintiff's relationship with Harry's, by stating defamatory and outrageous accusations against Ouzounian, such as calling him a "liar, who supported rape." (Compl., at 26.) An attack on a person's integrity by impugning his character as dishonest or immoral may form the basis of a defamation under New York law if an ordinary listener would tend to credit the statements as true. McNamnee v. Clemens, 762 F.Supp.2d 584, 601 (EDNY 2011) (internal citations omitted). See McNamnee at 602. (Statements that brand McNamee a liar found defamatory.) Further, "Rape" in the first degree, is a serious felony. Penal Code Statements that charge someone with a serious crime are actionable without need to establish actual harm. See Liberman v. Gelstein, 80 N.Y.3d 429, 436 (1992) (statement that "there is a cop on the take from [1andlord]" charged landlord with serious crime of bribery.) Further, written charges imputing unchaste conduct to Plaintiff Blum are libelous per se (see Exs. 7-8). See Leser v. Penido, 879 N.Y.S.2d 107, 108 (1st Dept. 2009) (posting of pornographic pictures and statements liked to the plaintiffs name and photograph on various websites damaged her business of selling luxury handbags online, and implied that she was "sexually lustful and promiscuous.") See Cohen v. Google, Inc., 887 N.Y.S.2d 424, 426 (1" Dept. 2009) (statements on anonymous blogger's blog, which uses words "skank," "skanky," "ho" and "whoring" in captions describing or commenting on photographs of petitioner.) C. PLAINTIFFS' HAVE STATED A CAUSE OF ACTION FOR MISAPPROPRIATION AND UNFAIR COMPETITION. 26 of 31