Nat'l Coal. on Black Civil Participation v. Wohl

661 F.Supp.3d 78

NATIONAL COALITION ON BLACK CIVIC PARTICIPATION, et al., Plaintiffs, v. Jacob WOHL, et al., Defendants.

20 Civ. 8668 (VM)

United States District Court, S.D. New York

Signed March 8, 2023

Aaron Joshua Gold, Kelley Drye & Warren LLP, New York, NY, Amy Lynn Walsh, Franklin G. Monsour, Jr., Brittany Sarah Roehrs, Rene Kathawala, Orrick, Herrington & Sutcliffe LLP, New York, NY, David Brody, Marc Philip Epstein, Lawyers' Committee for Civil Rights Under Law, Washington, DC, John Frederick Libby, Manatt, Phelps & Phillips, Los Angeles, CA, for Plaintiffs.

David Marc Schwartz, Gerstman Schwartz LLP, Garden City, NY, Randy Edward Kleinman, Kleinman Ginzberg LLP, Carle Place, NY, for Defendants Jacob Wohl, Jack Burkman, Project 1599, J.M. Burkman & Associates, LLC.

Rachel F. Homer, Protect Democracy, Washington, DC, for Amicus Protect Democracy Project, Inc.

Thomas McBrien, Electronic Privacy Information Center, Washington, DC, for Amicus Electronic Privacy Information Center.

Perry Grossman, Arthur Nelson Eisenberg, Christopher Thomas Dunn, New York Civil Liberties Union, New York, NY, for Amicus The New York Civil Liberties Union.

David J. Kennedy, U.S. Attorney's Office, New York, NY, for Amicus United States of America.

DECISION AND ORDER

VICTOR MARRERO, United States District Judge.

Plaintiffs National Coalition on Black Civic Participation ("NCBCP") and Mary Winter, Gene Steinberg, Nancy Hart, Sarah Wolff, Karen Slaven, Kate Kennedy, Eda Daniel, and Andrea Sferes (collectively, the "Individual Plaintiffs" and with NCBCP, the "Original Plaintiffs") filed this action against defendants Jacob Wohl ("Wohl"), Jack Burkman ("Burkman"), J.M. Burkman & Associates, LLC ("Burkman Associates"), Project 1599, and John and Jane Does 1 through 10 (collectively, "Defendants"). (See "Original Complaint," Dkt. No. 1; "Amended Complaint," Dkt. No. 149.) On May 19, 2021, Letitia James, Attorney General of the State of New York (the "NY AG" or "Plaintiff-Intervenor," and with the Original Plaintiffs, "Plaintiffs") on behalf of the People of the State of New York, filed a Complaint in Intervention against Defendants as well as Robert Mahanian ("Mahanian") and Message Communications, Inc. ("Message," and with Mahanian, the "Message Defendants"). (See "Complaint in Intervention," Dkt. No. 102.)

Together, Plaintiffs allege that Defendants sent robocalls containing false information intended to prevent recipients from voting by mail through threats and intimidation in violation of Section 11(b) of the Voting Rights Act of 1965 (the "VRA"), 52 U.S.C. § 10307(b), and Section 2 of the Ku Klux Klan Act of 1870 (the "KKK Act"), 42 U.S.C. § 1985(3). (See Amended Complaint; Complaint in Intervention.) The NY AG additionally alleges violations of the following: Section 131(b) of the Civil Rights Act of 1957 (the "Civil Rights Act"), 52 U.S.C. § 10101(b); Sections 40-c and 40-d of the New York Civil Rights Law (the "NYCRL"); Section 9 of the NYCRL; and Section 63(12) of the New York Executive Law (the "NYEL").¹ (See Complaint in Intervention.)

Now pending before the Court are the parties' cross motions for summary judgment. Defendants seek summary judgment dismissing Plaintiffs' claims. (See "Defs. MSJ," Dkt. No. 208; "Defs. MSJ Brief," Dkt. No. 209.) Plaintiffs jointly seek summary judgment as to liability on all their claims. (See "Pls. MSJ," Dkt. No. 212; "Pls. MSJ Brief," Dkt. No. 213.) Plaintiffs also move on two other matters: (1) Plaintiffs jointly move to strike Defendants' expert witness testimony (see "Pls. MTS Expert," Dkt. No. 219) and (2) Plaintiffs jointly move to strike Defendants' Rule 56.1 Statement of Undisputed Facts (see "Pls. MTS Defs. Rule 56.1 Stmt.," Dkt. No. 239). For the reasons discussed below, Plaintiffs' motion to strike Defendants' expert witness testimony is GRANTED, in part, and DENIED, in part; Plaintiffs' motion to strike Defendants' Rule 56.1 Statement is GRANTED, in part, and DENIED, in part; Defendants' motion for summary judgment is DENIED in its entirety; and Plaintiffs' joint motion for summary judgment as to liability on all claims is hereby GRANTED in its entirety.

I. BACKGROUND

A. FACTUAL BACKGROUND²

1. Defendants' Robocall Operation

Burkman is a Washington D.C.-based lobbyist and the founder of the lobbying firm Burkman Associates. Wohl is a political operative based out of California, and with Burkman, co-founded Project 1599, a political organization that was launched as a "candidate vetting apparatus," primarily targeting Democratic candidates and seeking to influence the November 2020 United States presidential election (the "2020 Election"). (Dkt. No. 216-13; see also Pls. Rule 56.1 Stmt. ¶ 5.)

This case begins in January 2019 when Wohl drafted a confidential prospectus for the Arlington Center for Political Intelligence ("ACPI"), "a conservative political intelligence and advocacy organization," in order to obtain seed funding for the 2020 Election cycle. ("ACPI Prospectus" or "Prospectus," Dkt. No. 216-14 at 2.)³ The Prospectus described Wohl's plans to utilize social media, traditional media, and other technology to suppress voter turnout among "important Demographics of Democrat voters," which included Black voters. (Id. at 13; Pls. Rule 56.1 Stmt. ¶ 6.) For example, the Prospectus described in detail how Wohl, through ACPI, would achieve one of its objectives of "[b]uild[ing] up left-wing online properties with a large following, only to have those properties direct followers to NOT vote come election day[]." (ACPI Prospectus at 13.) Via a flowchart, the Prospectus further outlined ACPI's strategy for influencing mainstream media, which involved "mak[ing] shit up," and "misdirect[ing] with details aimed to confuse, leading to more inquiry." (Id. at 11.)

Wohl's yet-to-be-realized plans were made public on June 4, 2019 when the Washington Post spotlighted Wohl and Burkman for their strategy to "smear the 2020 Democrats." ("Post Article," Dkt. No. 216-15.) The Washington Post highlighted Wohl's draft plan and his goal of raising money in order to "disseminate false information about Democratic presidential candidates to swing political betting markets." (Post Article at 10.)

Consistent with Wohl's proposal and the public declarations revealed in the Washington Post, Defendants set into motion a full-scale voter suppression operation during the summer of 2020 to discourage eligible voters from voting by targeting mail-in voting in the 2020 Election. In an email to Burkman, Wohl wrote, "we must HIJACK this boring election," to which Burkman responded with, "yes America needs w b."⁴ (Pls. Rule 56.1 Stmt. ¶ 6.)

Shifting their project into gear, Wohl and Burkman retained Message to transmit through a robocall, misleading and false messages carefully crafted to dissuade tens of thousands of voters across the United States from voting by mail. Headed by Mahanian, Message is a corporation that owns, operates, and hosts a telecommunication platform that broadcasts robocalls or prerecorded telephone messages for a fee.

Prior to its launch, Burkman corresponded with Mahanian regarding payment for the robocall ("Robocall"). Mahanian emailed Burkman the instructions for payment, to which Burkman responded, "Check to you Robert just went out in the 2 day pouch you will have in 2-3 days then we attack." (Id. ¶ 8.) Burkman issued a check for $1,000 to Message from the bank account of his firm, Burkman Associates. Burkman then emailed Mahanian to confirm whether payment had been received and informed Mahanian that he and Wohl were "ready to begin the robo calls[]" (Id. ¶ 10.) Mahanian confirmed that he received the check, credited Burkman's account, and declared that Burkman was "all set." (Id.)

On August 24, 2020, in Los Angeles, Wohl recruited a Black voice actress named Jana Hunt ("Hunt") through a Craigslist advertisement titled "Los Angeles Black Female Voice Over" to read and record Defendants' script for the Robocall. (Id. ¶ 12.) Hunt was paid a retainer fee of $50 and a combined total of $250 after she provided her voiceover services.

The following day, Wohl emailed Burkman the audio file of the Robocall recorded by Hunt. In that email, Wohl suggested which geographic locales to target for the Robocall, writing, "We should send [the Robocall] to black neighborhoods in Milwaukee, Detroit, Philadelphia, Charlotte, Richmond, Atlanta, and Cleveland." (Id. ¶ 14.) Burkman replied with, "cleveland phila minn chicago nyc detroit." (Id.)

On August 26, 2020, through an account held by Burkman Associates, Message transmitted the Robocall to 85,307 phone numbers across the country, including 5,494 calls with New York area codes. (Sawyer Decl. ¶ 2.) The Robocall contained the following message:

Hi, this is Tamika Taylor from Project 1599, the civil rights organization founded by Jack Burkman and Jacob Wohl. Mail-in voting sounds great, but did you know that if you vote by mail, your personal information will be part of a public database that will be used by police departments to track down old warrants and be used by credit card companies to collect outstanding debts? The CDC is even pushing to use records for mail-in voting to track people for mandatory vaccines. Don't be finessed into giving your private information to the man, stay safe and beware of vote by mail.

(Pls. Rule 56.1 Stmt. ¶ 4; Defs. Rule 56.1 Stmt. ¶ 3.) Ultimately, the Robocall was distributed to zip codes in the following cities: Cleveland, Ohio; Minneapolis, Minnesota; Chicago, Illinois; Pittsburgh and Philadelphia, Pennsylvania; Detroit, Michigan; New York, New York; and Arlington, Virginia. The caller ID information for the Robocall showed that the call was made under Burkman's name with his personal phone number. On October 26, 2020, at the hearing on Plaintiffs' request for injunctive relief in this action, both Wohl and Burkman admitted to the Court that they prepared the Robocall message and caused the Robocall to be...