Case 8:15-cv-00723-GJH Document 67 Filed 09/09/15 Page 1 of 20

UNITED STATES DISTRICT COURT

DISTRICT OF MARYLAND
SOUTHERN DIVISION
BRETT KIMBERLIN,
Plaintiff,

2015 SEP-8 PM 2: 52
C} ~f. :.~t.... ;c~:r-.J

I.:.U> G'-'LT-

BY_~/

v.

-'~D~PUTY

No, 8:15-cv-00723

GJH

HUNTON & WILLIAMS,

Defendants,
PLAINTIFF'S RESPONSE TO THE CHAMBER OF COMMERCE'S MOTION TO
DISMISS
Now comes Plaintiff Brett Kimberlin and responds
Chamber of Commerce's

in opposition

to Defendant

("COC") Motion to Dismiss. The motion glosses over the

true facts of this case and misapplies the law to those facts. The Complaint does, as
much as possible without discovery, state a claim under each and every count. The
statute of limitations

does not apply because these are continuing torts, set into

motion by the Defendants, and the injury to Plaintiff occurred within three years of
the filing of the Complaint.
The Complaint

Properly

States a Claim for Relief under

Fed.R.Civ.P.12(b)(6)

A motion filed under Rule 12(b)(6) challenges the legal sufficiency ofa complaint,
see Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009), and the legal sufficiency
is determined

by assessing whether the complaint contains sufficient facts, when

accepted as true, to "state a claim to relief that is plausible on its face," Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). This plausibility standard
allegations

requires only that the complaint's

"be enough to raise a right to relief above the speculative

factual

Case 8:15-cv-00723-GJH Document 67 Filed 09/09/15 Page 2 of 20

level." Twombly, 550 U.S. at 555. Accord, Summers v. Altarum Inst. Corp., 740 F.3d
325,328

(4th Cir. 2014).

To survive a motion to dismiss, a plaintiff need not demonstrate

relief is probable or that alternative

explanations

that the right to

are less likely; rather, he must

merely advance his claim "across the line from conceivable to plausible." Twombly,
550 U.S. at 570. If the explanation

is plausible, the complaint survives a motion to

dismiss under Rule 12(b)(6), regardless

alternative

explanation.

of whether there is a more plausible

Houck v. Ufestore_

F. 3d ~

Case No. 13-2326 (4th Cir.

July 1, 2015)
There is no speculation

required in this case. As set forth herein, Plaintiff has

pleaded a very specific set of facts showing participation

attorneys

in formulating

on the part of

cac and

its

a blueprint of domestic intelligence activities that were

used to inflict injury on Plaintiff, all of which satisfy the elements of each Count and
meet the standard

in Ashcroft v. Iqbal. Plaintiffs claims are plausible and supported

by many of the Defendants'

own emails and documents.

Short Statement of Facts

cac portrays

this case as a mere unconsummated

cyber intelligence contractors

and not even shared with
claim against

to lawyers for

cac, they

cae. cac also

cae.

"pitch" from several Defendant

Because it was unconsummated

assert, Plaintiff has failed to make a valid legal

argues that the claims are time barred because the

four-year statute of limitations

for RICO cases has passed and three-year

statute of

Case 8:15-cv-00723-GJH Document 67 Filed 09/09/15 Page 3 of 20

limitations

for the other claims has passed. These arguments

belied by the facts and established

legal precedent.

This Court must accept the allegations

accepting the cae's assertions

are without merit and

in the Complaint as true instead of

that Plaintiff failed to state a claim. Plaintiff has

alleged a very compelling and "plausible" narrative that the cac engaged in
racketeering

activity through an enterprise

42 USC 1985(2) by deterring

and pattern of activity; that it violated

him from cooperating

with a federal grand jury; that it

interfered

with his business activities, both current and prospective;

retaliated

against him for cooperating

that it

with a federal grand jury and investigation;

and that it launched a course of conduct that intended to cause him severe
emotional distress.

Plaintiff has backed up his narrative with scores of emails and

letters written by or about the cac laying out an abhorrent

plan to destroy Plaintiff

and his employer through the use of illegal and unethical means. Under Fed. R. Civ.
P. lD( c), a court can consider for purposes of a Rule 12 motion, documents

that are

attached to a motion to dismiss if they are referred to in the complaint and are
central to the plaintiffs
frustrated
resorted

claims. Plaintiff has also shown that the

cac was

very

after being exposed as engaging in nefarious conduct and that it then

to racketeering

activity to shut down those who exposed that conduct, such

as Plaintiff. Plaintiff has supplemented

his Complaint with the instant brief and with

his affidavit attached as Exhibit C. See Albiero v. City of Kankakee, 122 F.3d 417, 419
(7th Cir. 1997) (plaintiff opposing dismissal may supplement
factual narration

the complaint with

in an affidavit or brief, and if the extra assertions

then the complaint stands).

make out a claim,

Case 8:15-cv-00723-GJH Document 67 Filed 09/09/15 Page 4 of 20

This case should not be dismissed prior to discovery in this case, and to do so
would be contrary to the public's interest and would reward the Defendants'
outrageous,

tortious conduct. This case was filed after Edward Snowden and

Wikileaks exposed very highly public cyber abuses that have fundamentally

altered

the way that courts, legislators, the public and even the Executive Branch view
illegal domestic spying, The instant case opens a window into the secretive world of
spying on American citizens by private cyber security companies that work hand in
hand with law enforcement
powerful corporations
advocacy organizations,

and military agencies.

are using such companies not only to spy on opponents

but also to undermine

the use of diabolical, illegal and Segretti-type

One shudders

Moreover, it lays bare how

and

and ultimately destroy them through

means.

to think what would have happened

had Watergate

been swept

under the rug like the COC wants to do in this case by having this Court dismiss this
case at this stage of the proceedings.
would have gone unpunished.

History would have altered and criminals

Sunlight is a potent disinfectant,

should allow Plaintiff to shine sunlight on the abhorrent

named in this case by denying cae's

and this Court

abuses of the Defendants

Motion to Dismiss and allowing discovery.

Plaintiff Has Initiated Discovery To Support His Claims

This week, all ofthe represented
requests and interrogatories

Defendants will be served with both document

seeking information

Court should not rule on the Defendants'

complete.

to support Plaintiffs claims. This

Motions to Dismiss until that discovery is

Plaintiff believes that such discovery will support his claims and show

that the statute of limitations

does not apply to this case for various reasons.

It is

Case 8:15-cv-00723-GJH Document 67 Filed 09/09/15 Page 5 of 20

well established

that discovery can take place in complex cases such as the instant

case prior to a ruling on a motion to dismiss.

Forest River Inc" v. Heartland

Recreational Vehicles, (NO II 2012). See, e.g., Allstate Ins. Co. v. Levy, No. CV-l0-1652
(FB) (VVP), 2011 WL 288511, at *1 (E.D.N.Y. Jan. 27, 2011) (-The

pendency of the

motion to dismiss does not provide an automatic basis to stay discovery. II); Integ.
Systems & Power, Inc. v. Honeywell Int'l, Inc., No. 09 CV 5874(RPP), 2009 WL
2777076, at *1 (S.D.N.Y. Sept. 1, 2009) (-It is well-settled

that the issuance of a stay

of discovery pending the outcome of a motion to dismiss is by no means

automatic.'II);

DSM Desotech Inc. v. 3D Systems Corp., No. 08 CV 1531, 2008 WL

4812440, at *2 (N.D. Ill. Oct. 28, 2008) (-[T]he

does not automatically

mere filing of the motion [to dismiss]

stay discovery. II); Bocciolone v. Solowsky, No. 08-20200-CIV,

2008 WL 2906719, at *1 (S.D. Fla. July 24, 2008) (-[C]ourts

rejected any per se requirement
dispositive

have consistently

to stay discovery pending resolution

of a

motion. II). In Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1368

(11th Cir. 1997), Koock v. Sugar & Felsenthal, LLP, No. 8:09-CV-609- T-17EAj, 2009
WL 2579307, at *2 (M.D. Fla. Aug. 19, 2009) (-The holding in Chudasama does not
-

establish the general rule that discovery should not proceed while a motion to
dismiss is pending .... Instead, Chudasama and its progeny _stand for the much
narrower

proposition

that courts should not delay ruling on a likely meritorious

motion to dismiss while undue discovery costs mount.'ll). Accord In re Winn Dixie
Stores, Inc. ERISA Litig., No. 3:04-cv-194-J-33MCR,

2007 WL 1877887, at *1 (M.D.

Fla. June 28, 2007). See also Lori Andrus, In the Wake of Iqbal, 46 TRIAL 20, 29

Case 8:15-cv-00723-GJH Document 67 Filed 09/09/15 Page 6 of 20

(2010) (noting -the

many federal decisions rejecting the pendency ofa motion to

dismiss as a basis for granting a blanket discovery stay).

The Four-Year

RICO Statute

of Limitations

COC argues that the four-year statute of limitations has expired because Plaintiff
did not file his Complaint before the four-year time limit required

for RICO cases.

COC argues that Plaintiff would have had to file by February 2015 rather than March
2015, and therefor the RICO count is untimely.

This is without merit for several

reasons.
Rice v. Paladin

Enterprises

The Fourth Circuit, in Rice v. Paladin Enterprises Inc, 128 F.3d 233 (4th Cir. 1997),
set forth the principle for continuing liability such as Plaintiff has alleged in this
case. In 1983, Paladin Press published a book called, "Hit Man: A Technical Manual
for Independent

Contractors"

commit murder.

Ten years later, in Montgomery County Maryland, three people

were murdered

which provided detailed instructions

using the techniques

outlined in the book. The victims' family sued

Paladin Press for aiding and abetting the murder.

Amendment

protected

The trial court held that the First

Paladin, but on appeal, the Fourth Circuit, relying on

Maryland law, held that Paladin was responsible

instructions

on how to

because it had provided the

on how to kill, which had been followed by the actual killer:

we hold ... that the First Amendment does not pose a bar to a finding that Paladin is
civilly liable as an aider and abettor of Perry's triple contract murder. We also hold
that the plaintiffs have stated against Paladin a civil aiding and abetting claim under
Maryland law sufficient to withstand Paladin's motion for summary judgment. [at
243].
The Court, in making this determination,

relied on Maryland law:

Case 8:15-cv-00723-GJH Document 67 Filed 09/09/15 Page 7 of 20

Maryland's highest court has held that a defendant may be liable in tort ifhe "by any
means (words, signs, or motions) encouragers], inciters], aid[s] or abet[s] the act of
the direct perpetrator of the tort." Alleco Inc. v. Harry & jeanette Weinberg
Foundation, 340 Md. 176,665 A.2d 1038, 1049 (1995) (quoting Duke v. Feldman,245
Md. 454, 226 A.2d 345,347 (1967)). It further appears that generally Maryland
defines the tort of aiding and abetting in the same way that it defines the crime of
aiding and abetting. The state defines "aider" as one who "assist[s). support[s] or
supplement(s] the efforts of another," and defines "abettor" as "one who instigates,
advises or encourages the commission of a crime." Anello v. State, 201 Md. 164,93
A.2d 71,72-73 (Md.1952). The Court of Appeals has explained that in order for a
conviction to stand, "it is not essential that there be a prearranged concert of action,
although, in the absence of such action, it is essential that [the defendant] should in
some way advocate or encourage the commission of the crime." Id. And, recently, the
court has reiterated that criminal aiding and abetting "may be predicated upon
counseling or encouraging" a criminal act, even if there is no agreement between the
principal and the aider or abettor, and also that "[i]t is well settled that aiding and
abetting does not always require a conspiracy."Apostoledes v. State, 323 Md. 456,
593 A.2d 1117, 1121 (1991).
The primary, and possibly only, difference between Maryland's civil and criminal
laws of aiding and abetting is the intent requirement. As Judge Learned Hand
explained in discussing generally the difference between civil and criminal aiding
and abetting Jaws, the intent standard in the civil tort context requires only that the
criminal conduct be the "natural consequence of [one's] original act," whereas
criminal intent to aid and abet requires that the defendant have a "purposive
attitude" toward the commission of the offense. United States v. Peoni, 100 F.2d 401,
402 (2d Cir.1938); see also Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct.
766,770,93
L.Ed. 919 (1949) (adopting Judge Hand's view of the criminal intent
requirement). We assume that Maryland prescribes a higher intent standard for the
imposition of criminal liability than it does for civil liability. [at 251]
In the instant case, the Defendants, including the COC, created various documents,
including the "Corporate

Information

it would target, track, and neutralize

Reconnaissance

people, organizations,

directed by H&W. These included specific instructions

targets, including (1) using illegal surveillance,
harmful information,
documents

Cell" blueprint

friends, families and associates

and companies as

on how to harm these

both overt and covert, to gather

(2) installing mal ware on computers,

with false narratives

detailing how

(3) creating false

to ruin the credibility of the targets, (4) attacking

of the targets, (5) using social media software to
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Case 8:15-cv-00723-GJH Document 67 Filed 09/09/15 Page 8 of 20

automate snooping on targets, (6) undermining the credibility and funding bases of
the targets, (7) gathering personal information of family members to use for
exploitation and smearing of targets and other means.
In the instant case, these documents, prepared by highly specialized cyber
warfare experts employed by the CIAand Department of Defense, using techniques
developed to target international terrorist organizations, were circulated amongst
the Defendants without objection, and agreed upon. This package of techniques is
not something that the average person would engage in or even has the knowledge
base to imagine. Yet, after these documents were exposed by Anonymous, they
were instituted against Plaintiff by others in the intelligence community, including
Defendants Hoge and Nickless, and others acting in concert with them.
For the past three plus years, named and unnamed conspirators and/or aiders
and abettors, have taken the blueprint instructions and template created by and for
the Defendants in this case and used them to harm Plaintiff. They have (1) illegally
scraped social media sites of Plaintiff, his non profits, family and friends to find
exploits, (2) created false documents and false narratives about Plaintiff that they
have used to undermine his credibility and funding base, (3) engaged in multiple
attempts to cyber attack his non profits websites using phishing, malware and
denial of services software, (4) generated defamatory information that they placed
in the public domain, (5) targeted Plaintiffs family and teenage daughter with
predatory conduct, (6) targeted Plaintiffs employer and music business for
destruction, and (6) engaged in other illegal and nefarious conduct.

Case 8:15-cv-00723-GJH Document 67 Filed 09/09/15 Page 9 of 20

Did these people enter into an express conspiracy agreement

exposed by Anonymous, or did they simply take advantage
template created by those Defendants?
answer to that question.

with the Defendants

of the instructions

and

Without discovery, we do not know the

However, under Rice, the Defendants exposed by

Anonymous are liable as aiders and abettors for the continued harm that has
occurred to Plaintiff over the past three plus years because the conduct was the
"natural consequence

of [one's] original act,". Rice at 251. Therefore,

under the statute of limitations

there is no bar

to any of the counts in the Complaint.

SOL Is Tolled

Moreover, the statute of limitations was equitably tolled. In Rotella v. Wood, 528 U.S.
549 (2000), the Supreme Court set a four-year discovery of injury limitation in RICO
cases. However, the Court made clear that that limitation is not rigid:
In rejecting pattern discovery as a rule, we do not unsettle the understanding
that federal statutes of limitations are generally subject to equitable
principles of tolling .... and where a pattern remains obscure in the face of a
plaintiffs diligence in seeking to identify it, equitable tolling may be one
answer to plaintiffs difficulty. The virtue of relying on equitable tolling lies
in the very nature of such tolling as the exception, not the rule. [at 560-61]
As the Supreme Court reaffirmed earlier this year in United States v. Kwai Fun
Wong, __

U.S.__

(2015), "a court usually may pause the running of a limitations

statute in private litigation when a party 'has pursued his rights diligently but some
extraordinary

circumstance'

prevents him from meeting a deadline.'''

(citation

omitted).
In the instant case, there are several reasons to find that the SOL for RICO did not
end in February 2015.
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Case 8:15-cv-00723-GJH Document 67 Filed 09/09/15 Page 10 of 20

1. On or about November 2014, a whistleblower

this case contacted

Plaintiff and advised him that that the Defendants at Hunton &

Williams in the "Wikileaks/USCOC/BofA

information

with intimate knowledge of

about the matter.

dirty tricks campaign" were hiding

He specifically urged Plaintiff to file suit and seek

discovery, and indicated that Defendant Richard Wyatt would be in a position to

provide pertinent

information

that had been taken from the premises of the Hunton

& Williams firm in March of 2011 in order to protect it from discovery.

He said that

these matters caused serious marital discord for Mr. Wyatt that led to the
dissolution

of that marriage.

He said that Plaintiff should seek discovery of these

matters.
2. In light of the information
December 17, 2014, contacted

provided by the whistleblower,

Plaintiff, on

Defendants Wood, Wyatt and Quackenboss

at Hunton

& Williams informing them that Plaintiff would be filing this case, and that he was
available for pre-suit discussions.

On February 9, 2015, Plaintifffollowed

with an email to David Higbee, Managing Partner at H&W in Washington,

him know that Plaintiffs filing of the suit was imminent.
H&W General Counsel Robert Rolf contacted
H&W headquarters

that up
DC, letting

On February 15, 2015,

Plaintiff and asked for a meeting at

in Richmond, Virginia on February 19, 2015, which occurred

under Federal Rule of Civil Procedure 408. Negotiations

continued over the next

several weeks regarding resolution, service and wording in the Complaint, which
Plaintiff filed on March16, 2015. The H&W Defendants were very aware during this
time about the possibility of a Statute of Limitations defense yet Mr. Rolf stated that
if the case was resolved, H&W would waive any SOL.

10

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In short, the H&W Defendants and the

cac Defendants

(which were represented

by H&W counsel) knew, as early as December 17, 2014, that Plaintiff was going to
file this suit. Counsel engaged in confidential

discussions

with Plaintiff from as early

as February 15, 2015. They discussed the SOL defense and even about waiving it
during the resolution

process.

Clearly, Plaintiff exercised due diligence in filing the

Complaint and acted quickly after learning the information

from the whistleblower.

Irwin v. Department of Veterans Affairs, 498 U. S. 89, 95.6 (1990),

Plaintiffs

Injuries

Moreover, the statute of limitations was never exceeded when Plaintiff filed his
Complaint because the injuries suffered by Plaintiff did not accrue until well after
March 2011. In fact, as set forth in the Complaint, it was the harm caused by the
adoption of the Team Themis blueprint

instructions

by Defendants Hoge, Nickless

and others beginning in May 2012 that became the starting date for all the statutes
of limitations.

See also Plaintiffs declaration

created on behalf of the

cac to harm

a "Tier I" target, and the

cac made

at Exhibit C. Those instructions

its perceived enemies.

were

Plaintiff was named as

it clear that it wanted Plaintiff neutralized.

As

the Supreme Court held in Rotella, the SOL for RICO begins to run from the time of
the discovery of the injury, which in this case was May 2012.
At this stage of the proceedings,

Plaintiff does not know if, as is routine for black

operations,

the Defendants turned over or contracted

Defendants

Hoge, Nickless and others as proxies, or ifthose Defendants and others

simply adopted the instruction

their attack campaign to

manual set forth in the Team Themis documents

after they became public. However, it does not matter for purposes of liability or

11

Case 8:15-cv-00723-GJH Document 67 Filed 09/09/15 Page 12 of 20

jurisdiction

since the injury to Plaintiff flowed from the creation and publication

of

Team Themis attack documents.

As several of the Defendants admitted in an email exchange on November 10,
2010, they saw themselves

as a hybrid of James Bond and mafia gangsters:

"We need

to blow these guys away with descriptions of our capabilities, IP,and talent. Make
them think that we are Bond, Q, and money penny all packaed {sic} up with a bow....
Most afall that we are the best money can buy! Dam {sic}iffeelsgood to be a gangsta."
Complaint at 23. Both Bond and gangsters act without regard to the law or rules,
yet these Defendants want this Court to accept their argument

that their conduct

ended on February 4,2011 when they were exposed by Anonymous, and they
quietly went back to their daily routines filled with humiliation.
Court to ignore the unprecedented
May 2012 using the same techniques

They want this

attack campaign launched against Plaintiff in

set forth in the Team Themis documents.

want to forget that on November 9, 2010, Defendant Aaron Barr referenced

the instigators

of that future attack, Mandy Nagy, in his discussions

They

one of

with Defendant

Pat Ryan when he said, "We could do so much with this ..." Exhibit A. And yes, he did
do much with it according to the Complaint-he

turned over the keys to the Team

Themis campaign to her and others, so they could continue and institute the attacks
on Plaintiff to harm him and his business.

Those attacks have continued

for the past

three plus years and someone, likely associated with Defendants, is funding them.
Yet now, the

cac and

the other Defendants want this Court to let them go on their

merry way with no discovery, no accountability

12

and no change in behavior.

Case 8:15-cv-00723-GJH Document 67 Filed 09/09/15 Page 13 of 20

The RICO Claim Meets The Initial Pleading Requirement

The COC makes various claims as to why Plaintiffs RICO claim does not state a
claim or meet the requisite pleading standard
has pled no enterprise,
business.

of particularity.

no pattern of racketeering,

It argues that Plaintiff

and no harm to Plaintiffs

This is without merit.

In Rotella, the Court made clear that RICO cases should be construed

with

flexibility rather than being dismissed prior to discovery:

Rotella has presented

no case in which Rule 9(b) has effectively barred a claim like

his, and he ignores the flexibility provided by Rule 11(b)(3), allowing pleadings
based on evidence reasonably anticipated after further investigation or discovery.
See, e.g., Corley v. Rosewood Care Center, Inc. of Peoria, 142 F. 3d 1041, 1050-1051
(CA? 1998) (relaxing particularity requirements of Rule 9(b) where RICO plaintiff
lacks access to all facts necessary to detail claim). [Id at 560]
In Corley, the Court found that where the information
ofthe predicate acts was in the hands ofthe defendants,

regarding the particularity

the RICO count could not be

dismissed for failure to state a claim:

we believe that Rule 9(b)'s particularity requirement must be relaxed if, at the time
the complaint was filed, Corley had been denied access in discovery to information
that would identity those residents [and therefore the specifics ofthe fraud]. at
1051
The instant case screams out for the Court's flexibility and for discovery.
Defendants are a mix of black ops intelligence contractors,

The

extremely powerful

lawyers and their firm of over 800 lawyers, and the most powerful corporate
lobbying entity on earth. These Defendants have secrecy embedded

in their DNA.

In fact, when Anonymous exposed their nefarious activities, every single Defendant
except Palantir CEO Alex Karp engaged in a bunker mentality by battening down the
hatches and refusing substantive

comment, despite demands from the press and

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others for answers.

In short, were it not for the Anonymous expose', this RICa

activity would have been kept cloaked in the dark depths of top secrecy while law
abiding citizens and advocacy organizations
covert attacks funded and directed by the
other Defendants.

would have been subjected

cac

to overt and

and its lawyers, and implemented

by

The Defendants are now hoping that this Court will dismiss

Plaintiffs claim so that their conduct will remain buried in their secret archives.
They have stated that they will vigorously oppose any discovery while telling the
Court that Plaintiff has not pled his Complaint with particularity.

But, as Rotella and

Corely make clear, that would constitute error. And it would be unfair and unjust.
The Enterprise
The

cac

cac

argues that Plaintiff has not shown that there was an enterprise

was a part of that enterprise.

To the contrary, the enterprise

or that

is defined in the

Complaint as:
The association in fact enterprise is a group of people and entities associated
together for the common purpose of acting to promote caC's business interests and
protecting the cac and its senior staff from any external opposition and criminal
and administrative investigations. Complaint at 48.

cac

asserts that Plaintiff has not shown with particularity

anything about the H&WITeam Themis "pitch", and therefore

part of the enterprise.

This is without merit.

acting as agents of the

cac,

security contractors,
ultimately responsible

First, the

cac

even knew

could not have been

caC's lawyers

at H&W,

were directing the contacts with the Defendant cyber

and therefore, the

cac, which

was paying those lawyers, is

for knowing what their attorneys

because these documented

that

were doing. In fact,

contacts continued over a period of at least six months,

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cac was certainly billed by H&Wattorneys for the time spent dealing with those
contractors.
Second, there are many emails that indicate that H&Wwas keeping cac in the
loop and having direct contact with cac about the Team Themis proposals. These
are listed in an article by reporter Scott Keyes at ThinkProgress on February 14,
2011. Exhibit B.
Third, as Exhibit J of Plaintiffs Complaint makes clear, H&Wprovided a "data
disc" to Team Themis loaded with information about Plaintiff and other opponents
of the cac, which the cac had compiled over a long period. Defendants Pat Ryan
and Aaron Barr said they would incorporate this data into their own database at
Palantir. Complaint at 20. It is inconceivable that H&Wwould be in possession of a
data disc of compiled data on people opposed to the cac without caC's knowledge.
Fourth, to accept caC's position without discovery would grant it immunity from
suit simply because it used H&Wlawyers as a firewall of protection. This Court
should not tolerate this common tactic of organized crime bosses.
Fifth, without discovery, there is no way of knowing whether the enterprise was
limited to the facts set forth in the Complaint or whether it was really "shuttered"
after the Anonymous expose'. The Team Themis plan was breathtaking in its scope,
targeting more that a dozen advocacy organizations and their leaders, with a 12
million dollar proposed budget. Included in the discussions were other clients such
as Bank of America and Booz Allen, and other targets such as Wikileaks. In short,
this was a huge operation involving many of the most powerful entities on earth yet

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the cac asks this Court to believe that it was clueless to the rogue operation

being

run by its 800 lawyer firm, H&W.

Pattern of Racketeering
cac asserts that Plaintiff has not shown a pattern of racketeering
failed to show with particularity

because he has

the specifics of charged crimes, such as fraud. As

Plaintiff pointed out above, the Defendants are in possession

Plaintiff needs to show that particularity,

and therefore

of the documents

that

this Court should not rule on

their Motion to Dismiss until Plaintiff receives those documents.

Contrary to cae's argument
and intimidation

regarding the predicate act of obstruction

of justice

of a witness, Plaintiff has clearly alleged in the Complaint that he

(1) was working with whistleblowers

who provided information

and its senior staff, (2) was in regular communication

cac illegal activities, (3) had provided information
member Donald Blankenship's

about the Chamber

with the FBI in person about

to the FBI about cac board

criminal activities, (4) he had his non profit lawyer

lead the call for a criminal investigation

of cac member NewsCorp for violating the

Foreign Corrupt Practices Act, (5) had offered to testify before any grand jury
investigating

the matters he provided to the FBI, and (6) had been told that a grand

jury was investigating

Donald Blankenship's

crimes as provided by Plaintiff to the

FBI and that he could be called as a witness. See Exhibit C.

The cac did not want Plaintiff to be believed by the FBI or the grand jury. The
cac knew that Plaintiff and his organizations
cac activities, and they wanted it stopped.

were bringing unwanted

scrutiny of

The cac wanted to ensure that Plaintiff

became so toxic that he would either never be called to the grand jury, would not be

16

Case 8:15-cv-00723-GJH Document 67 Filed 09/09/15 Page 17 of 20

believed if called, or would be intimidated and deterred from testifying before the
grand jury. The cac cannot now assert that since Plaintiff never testified, that it did
not obstruct justice. In fact, just the opposite is true-its

tactics worked because

Plaintiff was not called before the grand jury, he has been intimidated and deterred
from pursuing further exposes' of the cac, and he has been embroiled in a multiyear campaign of personal and professional destruction by persons who have
adopted the techniques created by the Defendants.
Moreover, the actions of the Defendants, including cac, involved intimidating
Plaintifffrom being a witness and retaliating against him for providing information
to the FBIand grand jury that indicted cac Board Member Donald Blankenship.
This violated 18 USC1512(d) and 1513 (b) and (e).
Without discovery, Plaintiff cannot know if the money spent by the cac on H&W's
black operations was derived from unlawful activities to make it qualify for money
laundering. Considering the secret nature of the operation, the caC's statements of
plausible deniability, and the great lengths cac went through to "see no evil," it is
very plausible that it was funding these operations with a black bag account that
was kept off the books, making it unlawful proceeds.
Injury to Business and Property
The Complaint sets forth a long list of ways in which Plaintiffs business and
property interests were harmed by the Defendants' racketeering activity and the
adoption of the Team Themis campaign. Complaint at 57-58 and Exhibit C. Because
these allegations must be accepted as true, this is all that is necessary at this stage of
the proceedings to meet the harm to business element.

17

Case 8:15-cv-00723-GJH Document 67 Filed 09/09/15 Page 18 of 20

Clearly, Plaintiff has alleged an enterprise,

pattern of racketeering,

and harm to

business and property, and this Court should not dismiss this case without first
allowing Plaintiff to seek discovery to prove the elements of the RICO charge.
The 42 USC 1985(2)

Count

The COC makes the same argument

regarding the section 1985(2) count as it

does regarding some of the predicate acts: that Plaintiff was not deterred
testifying before a federal grand jury because he presented

from

no evidence that he was

going to be a witness at a grand jury. This circular chicken and egg argument
without merit as Plaintiff demonstrated

is

above. In this case, unlike Kimberlin v.

National Bloggers Club, relied on by COC,there was a federal grand jury empaneled
to investigate

matters Plaintiff brought to the attention

of the FBI regarding criminal

activities of Massey Energy and its COC Board Member, Donald Blankenship.
FBI told Plaintiff to be prepared
information

The

to testify before the grand jury regarding

he provided to the FBI. See Exhibit C.

Clearly, the COC did not want Plaintiff to testify or expose any of the criminal
activities of itself or its senior members.
Wyatt, Wood and Quackenboss
Plaintiff and others.

That is precisely why Defendants

hired the military intelligence contractors

In fact, the timing is important

H&W,
to target

since it was in April and May

2010, just a few months before H&W hired Team Themis, that Plaintiff first
provided the FBI with information

about Donald Blankenship's

CEO of Massey Energy. Zeese, Kevin, Criminal Investigations

criminal activities as

of Massey Energy Go

Forward As Citizen Pressure Buildsfor Prosecution, Truthout, May 29, 2010.

Plaintiffs non-profit had offered a $50,000 reward for information

18

about Massey

Case 8:15-cv-00723-GJH Document 67 Filed 09/09/15 Page 19 of 20

Energy from whistleblowers

filed complaints

that he then hand delivered to the FBI. The non-profit

with the FEC and IRS regarding the

finance violations, and it requested

Congressional

resulted in withering criticism and scrutiny of the

caC's criminal

investigations

cac from

campaign

of the

cae.

All this

the press, Members of

Congress, and even the White House. See e.g., Eaggen Dan, Obama Continues Attacks
on Chamber a/Commerce, Washington
a/Commerce

Post, Oct. 11, 2010; Zornick, George, Chamber

Story Sparks Wide-Ranging Reaction, Calls/or Investigations, Think

Progress, Oct, 7, 2010. Long term members of the

and Nike all quit the

cac

such as Apple, PG&E, Excelon

because of expose's of the Chamber's positions by

Plaintiffs non-profit and others.

Chamber a/Commerce,

cac

Korosec, Kristen, Five and Counting: Apple Quits

CBS Money Line, Oct. 5, 2009. The

cac

was hemorrhaging

bad news and it wanted it stopped at any price, leading to the hiring of Team Themis
and the targeting of Plaintiff so he would or could not testify about what he had
uncovered

about the

cac

and its senior members.

Clearly, this constitutes

violation of 42 USC 1985(2).

The Remaining
The

cac

Claims

makes arguments

regarding several other claims, including that they are

time barred or fail to state a claim. Plaintiff adopts his arguments

the statute of limitations

above regarding

noting that the SOL starts when the injury is discovered.

Plaintiffs case, the injury from the Team Themis plan was discovered
well within Maryland's three year SOL. Moreover, although the

cac

in May 2012,
relies on

Maryland SOL statutes, it ignores Article 19 of the Maryland Constitution,

states:

19

which

In

Case 8:15-cv-00723-GJH Document 67 Filed 09/09/15 Page 20 of 20

That every man, for any injury done to him in his person or property, ought to have
remedy by the course of the Law of the land, and ought to have justice and right,
freely without sale, fully without any denial, and speedily without delay, according
to the Law of the land.
In the instant case, the COC,directly and through its co-Defendant
a blueprint

on how to "fracture, undermine

and that blueprint

agents, created

and destroy" Plaintiff and his employer,

was then used by Defendants

Hoge, Nickless and others to injure

Plaintiff. The COCwants this Court to grant it immunity based on when it and its
agents created that blueprint

rather than when that blueprint was used to injure

Plaintiff. This would deny him "justice and right" under Article 19. Cf.jackson v.
Dackman, 30 A.3d 854 (Md. 2011) (statute which granted immunity

manufacturers
Wherefore,

to lead paint

after time period violated Article 19).

for all the foregoing reasons, the Court should deny cae's

Motion to

Dismiss.
Respectfully submitted,
Brett Kimberl"
Certificate of Service
I certify that I emailed a copy of this response to the Defendants this 8th day of
September,

2015.
Brett Kimbe

20

Case 8:15-cv-00723-GJH Document 67-1 Filed 09/09/15 Page 1 of 1

mlrror.anapnea.ne

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HBGary Email Viewer

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: Original file:
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i'\
~

Aaron Barr <aaron@hbgarycom>

From:

I To:

Patnck Ryan <pryan@bencotechnologles.com>

I Date:

Tue, 9 Nov 201023.3650.0500

I
I

Subject:

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I Attachments:
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http://bigjournalism.com/libertychick/2010/10/11/progressivesembrace-convicted-terrorist/

I We could
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do so much with

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719.510.8478

Case 8:15-cv-00723-GJH Document 67-2 Filed 09/09/15 Page 1 of 5

o '# Tweet
f Share

96

THlnKPrDGrESS
HOME

CLIMATE

ECONOMY

HEALTH

JUSTICE

LGBT

WORLD

CULTURE

SPORTS

POLITICS

"

Judge In California

Not Satisfied With His

Even The Heritage

9 Ridiculous

Delivers Uber's Worst

War On Immigrants,

Foundation

From Dick Cheney's

Should Be Terrified

Nightmare

Trump Picks A Fight

Anti-Gay Kentucky Clerk

New Book

Trump

With Native Americans

Is Nuts

Thinks That

Passages

Why Evangelicals
Of

ECONOMY

Despite Denials, New Emails Suggest US Chamber

Was Aware Of Private Security Firms' Espionage
Work
BY

scan KEYES '# FEB 14, 2011

11 :58AM

Case 8:15-cv-00723-GJH Document 67-2 Filed 09/09/15 Page 2 of 5

-,'.

On Friday, the

u.s. Chamber

of Commerce - the big business lobby representing Exxon Mobil,

Goldman Sachs, AIG, and other major corporations - released its second denial in the ongoing
ChamberLeaks controversy. In it, they claimed that HBGary's proposal "was never discussed with
anyone at the Chamber" and that "the Chamber was not aware of these proposals until HBGary's emails leaked." However, at least six separate leaked HBGary emails suggest that, contrary to their
denials, the Chamber was repeatedly made aware of the activities of HBGary and two other private
security firms.
As ThinkProgress laid out last week, the lobbying law firm Hunton & Williams (H&W) served as the gQ:
between for the Chamber and three private security firms - HBGary, Palantir, and Berico

Case 8:15-cv-00723-GJH Document 67-2 Filed 09/09/15 Page 3 of 5

Technologies - who were collectively known as "Team Themis." Emails indicate that three top lawyers
at Hunton & Williams - John Woods, Bob Quackenboss, and Richard Wyatt -

met on multiple

occasions with the Chamber in order to brief them on Team Themis's proposals.
First, emails clearly indicate that the "client" whom Team Themis was assisting was indeed the

U.s.

Chamber of Commerce:
- December 13: Pat Ryan of Berico Technologies emailed John Woods that the team was
excited "to provide the client with a powerful, innovative solution" and were "still working
through the details of our Phase I research/analysis support for the Chamber."
-

lanuary 9: Pat Ryan emailed his Team Themis colleagues that he had received a message

from H&W lawyer Bob Quackenboss's secretary "requesting a conference call on Mon at
1Dam to discuss the

way ahead for the Chamber effort."

Despite the Chamber's insistence that they were "not aware" of HBGary's proposals, a November 16
email between Aaron Barr of HBGary and Berico Technologies indicated that members ofTeam
Themis had been communicating about contracts with Hunton & Williams:

Case 8:15-cv-00723-GJH Document 67-2 Filed 09/09/15 Page 4 of 5

From:

Aaron Barr <aaron@hbgary.com>

Subject Re: H&W Teaming Agreement
Date: November 16, 2010 11 :57:33 AM EST
To: Danielle Berti <dberti@bericotechnologies.com>
Cc: Pat Ryan <pryan@bericotechnologies.com>

1 Attachment, 92.6 KB

Save"')

Quick Loo

Thanks Pat.
Danielle. I had two issues which I changed and highlighted for your
review. I think fairly inor. In regards to publicity given the sensitive
nature of the work to be perfor ed I added that any press release has to
be appro led by all parties before release.
Second I just added so e language to deal with the occasion where
because of expediency or just in effective execution of the contract it
becomes
re efficient to speak directly to the client (this has already
happened although we are under no contract). In these rare
circumstances it will be the responsibility of the sub to notify the pri e
of the co
unication within 24 hours.
Let

e know what you think.

Aaron

Other emails records indicate that H&W told Team Themis it was in constant contact with the
Chamber about the project:
- November 16: In a Team Themis internal memo, Eli Bingham of Palantir informed the group
that H&W would soon "write and return a contract." A week later, on November 23, a
meeting was scheduled where Richard Wyatt, one of H&W's top laywers, would be
"presenting

to the client." Bingham pushed to "have a team representative there, or a demo

video."
-

November 23: H&W lawyer John Woods wrote to Sam Kremin of Berico Technologies to

explain that fellow H&W laywer Bob Quackenboss was the point man between H&W and the

Case 8:15-cv-00723-GJH Document 67-2 Filed 09/09/15 Page 5 of 5

Chamber. "Bob is our key client contact operationally:' Woods wrote, "and he will be called
upon to explain to a different group what you all will actually be doing."
-

November 29: After Aaron Barr wrote the email detailing Team Themis's plan to create a

"false document" and "fake insider personnas (sic)" intended to trick the Chamber's political
opponents, Sam Kremin approved and said he would forward the plans to Bob Quackenboss
in order to brief the Chamber. "When I give these to Bob," Kremin wrote, "I will
emphasize that these are just examples to give him an idea of what he is pitching to
the Chamber."
-

December 1: Matthew Steckman of Palantir updated Team Themis on a meeting he had

just concluded with H&W. Discussing the proposed $2 million project fee, Steckman noted
that H&W lawyer Richard Wyatt was "looking to push that number to the Chamber." In the
meantime, non-disclosure agreements were being drawn up for the team. H&W was
enthusiastic because they saw the "potential for huge gains in this market especially since 'the
results of the election made some people angry.''' Steckman wrote that following
of the project, H&W was "looking forward

Phase I

to briefing the results to the Chamber to get

them to pony up the cash for Phase II." That meeting had been set to take place today,
February 14. It's unclear whether it will still happen.
-

February 3: Pat Ryan of Berico Technologies wrote Team Themis that they should meet

with H&W lawyer Bob Quackenboss in the next few days to "select focused topic(s) for the
demo to the Chamber" that had been scheduled to occur today. Ryan noted that
Quackenboss told him that a separate demo had "sold the Chamber in the first place."
While many questions remain in the unfolding ChamberLeaks controversy, what's clear is that this
multitude of emails clearly contradicts the Chamber's claim that they were "not aware of these
proposals until HBGary's e-mails leaked." Rather, H&W's lawyers appear to have consistently kept the
Chamber informed on Team Themis's progress.

UPDATE
An October 25, 2010 email also shows H&W laywer John Woods planning to meet with the Chamber
in early November

regarding Team Themis's project. Woods wrote to a Palantir engineer that

speaking "Next Wednesday or Thursday works well, as I have to make our formal pitch to the client
early the following week."
Share Update ~ Facebook

Twitter

Case 8:15-cv-00723-GJH Document 67-3 Filed 09/09/15 Page 1 of 2

UNITED STATES DISTRICT COURT

DISTRICT OF MARYLAND
SOUTHERN DIVISION
BRETT KIMBERLIN,
Plaintiff,

v.

No. 8:15-cv-00723

GjH

HUNTON & WILLIAMS,

Defendants.
PLAINTIFF

BRETT KIMBERLIN'S

DECLARATION

UNDER 28 USC 1746

I, Brett Kimberlin, swear, pursuant to the provisions of 28 USC 1746, that the
following is true and correct.

1. I have suffered injuries beginning in May 2012, from the plan created by
Team Themis for the Chamber of Commerce.
created false narratives

and false documents

People who used that plan

to harm my employer and me.

They have defamed my name and thereby harmed my business' ability to

raise funds. This has also deprived my music business from pursuing
business opportunities

and harmed my ability to manage my daughter's

music career.
2. In November jDecember

2014, I was contacted by a whistleblower

who

advised me that there was much more to the "WikileaksjUSCOCjBofA

dirty

tricks campaign" than is publicly known, and that I should file suit to discover
that information

and hold the wrongdoers

contacted lawyers at Hunton&Williams

accountable.

Shortly thereafter,

and then engaged in discussions

them both in person, and by phone and email, about this case.

with

Case 8:15-cv-00723-GJH Document 67-3 Filed 09/09/15 Page 2 of 2

3. I personally
information

met with the FBI at the Washington

DC Field Office and provided

to it about the Chamber of Commerce, Massey Energy, Donald

Blankenship and NewsCorp.

I continued to provide information

over several years, including information

to the FBI

I received through whistleblowers.

I learned that a federal grand jury had been empaneled

to investigate

Massey

Energy and Donald Blankenship, and I was advised that the grand jury would
be interested
information

in hearing testimony or receiving evidence from me regarding

I received from whistleblowers.

for information

My employer posted a reward

about Massey Energy, Donald Blankenship

and the Big

Branch Mine disaster.

4. I felt intimidated

and deterred

destroy me and my employer.

by the Team Themis plan to attack and

I was shocked to learn that I was designated

Tier I target by Team Themis.

Dated this 8th day of September,

2015

22