PlainSite :: MOSSACK FONSECA & CO., S.A. et al, Connecticut District Court Case No. 3:19-cv-01618-JBA Document 20: MEMORANDUM in Opposition to Motion

Page 1 UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
____________________________________
:
MOSSACK FONSECA & CO., S.A.,
:
BUFETE MF & CO., JURGEN
:
MOSSACK and RAMON FONSECA
:
:
Plaintiffs,
:
CIVIL ACTION NO. 3:19-cv-01618
:
v.
:
:
NETFLIX INC.
:
October 17, 2019
:
Defendant.
:
____________________________________:
DEFENDANT NETFLIX, INC.’S MEMORANDUM OF LAW IN OPPOSITION TO
PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND
PRELIMINARY INJUNCTION

Page 2 TABLE OF CONTENTS
TABLE OF AUTHORITIES ..................................................................................................... iii
PRELIMINARY STATEMENT ................................................................................................. 1
FACTUAL BACKGROUND ...................................................................................................... 4
The Panama Papers Scandal .................................................................................................. 4
The Laundromat .................................................................................................................... 5
The Complaint...............................................................................................................
8
ARGUMENT ........................................................................................................................
9
I. PLAINTIFFS HAVE FAILED TO DEMONSTRATE IRREPARABLE HARM ........... 10
II. PLAINTIFF IS NOT LIKELY TO SUCCEED ON THE MERITS OF ITS CLAIMS .... 17
A. Plaintiffs’ Requested Preliminary Injunction Is An Unconstitutional Prior
Restraint ................................................................................................................. 17
B. Plaintiffs Are Unlikely To Succeed On The Merits Of Their Defamation
Claims .................................................................................................................... 20.
The Film Is Not A False Publication Of Fact Concerning Plaintiffs................ 20
.
The Injury to Plaintiffs’ Reputation Has Already Occurred ............................ 21
.
Plaintiffs Are Public Figures But Cannot Prove Actual Malice ....................... 21
a. Plaintiffs Are Public Figures ...................................................................... 22
b. Plaintiffs Have Not Sufficiently Alleged And Cannot Prove Actual
Malice ....................................................................................................... 23
C. Plaintiffs Are Unlikely To Succeed On The Merits Of Their False Light
Privacy Claim......................................................................................................... 26
D. Plaintiffs’ Claims Fail Under Connecticut’s Anti-SLAPP Statute ........................... 27
E.
Plaintiffs Are Unlikely To Succeed On The Merits Of Their Trademark
Dilution Claim........................................................................................................ 28.
Plaintiffs Cannot Prove Their Mark Is “Famous” For Dilution Purposes ........ 28
i

Page 3 TABLE OF CONTENTS, continued
F.
.
Plaintiffs’ Dilution Claim Fails Because Plaintiffs’ Mark Is Already
Tarnished ....................................................................................................... 30
.
Defendant’s Work Falls Within The Noncommercial Use Exception To
The Dilution Statute....................................................................................... 30
Plaintiffs Are Unlikely To Succeed On The Merits Of Their Trademark
Claims Under the Rogers Rule ............................................................................... 31
III. THE BALANCE OF EQUITIES AND PUBLIC INTEREST TIP DECIDELY IN
DEFENDANT’S FAVOR ............................................................................................. 33
IV. PLAINTIFF’S BOND WOULD HAVE TO BE AT LEAST $1 MILLION ................... 34
CONCLUSION
35
ii

Page 4 TABLE OF AUTHORITIES
CASES
PAGE(s)
American Malting Co. v. Keitel, F. 351 (2d Cir. 1913) .....................................................................................................17
Bingham v. Straude, A.D.2d 85 (1st Dep’t 1992) ........................................................................................... 18
Biro v. Conde Nast, F. Supp. 2d 255 (S.D.N.Y. 2013), aff’d, 877 F.3d 541 (2d Cir. 2015), aff’d, 622
F. App’x 67 (2d Cir. 2015) .............................................................................................. 23, 24
Brooks v. Consensus Strategies, LLC,
No. 3:07-cv-0560(PCD), 2007 WL 9754573 (D. Conn. June 18, 2007) ................................ 10
Cardillo v. Doubleday & Co., F.2d 638 (2d Cir. 1975) ................................................................................................. 21
Chau v. Lewis, F.3d 118 (2d Cir. 2014) ................................................................................................. 20
Citibank, N.A. v. Citytrust, F.2d 273 (2d Cir. 1985) ................................................................................................. 15
Coach Services, Inc. v. Triumph Learning LLC, F.3d 1356 (Fed. Cir. 2012)............................................................................................. 29
Cronin v. Pelletier,
No. CV186014395S, 2018 WL 3965004 (Conn. Super. Ct. July 26, 2018) ...........................27
Dameron v. Washington Magazine, Inc., F.2d 736 (D.C. Cir. 1985) .............................................................................................. 22
Davis v. Costa-Gavras, F. Supp. 653 (S.D.N.Y. 1987) ............................................................................ 12, 24, 25
De Havilland v. FX Networks, LLC, Cal. App. 5th 845, 869 (Cal. App. 2018), review denied, No. S2448614, 2018 Cal.
LEXIS 5034 (Cal. July 11, 2018), cert. denied, 139 S. Ct. 800 (2019) ................................... 26
Dillinger, LLC v. Electronic Arts, Inc.,
No. 1:09-cv-1236-JMS-DKL, 2011 U.S. Dist. LEXIS 64006
(S.D. Ind. June 16, 2011) ...................................................................................................... 32
iii

Page 5 CASES
PAGE(s)
E.S.S. Entm’t 2000, Inc. v. Rock Star Videos, Inc., F.3d 1095 (9th Cir. 2008) .............................................................................................. 32
ETW Corp. v. Jireh Publ’g, Inc., F.3d 915 (6th Cir. 2003) ................................................................................................ 31
Faiveley Transp. Malmo AB v. Wabtec Corp., F.3d 110 (2d Cir. 2009) ................................................................................................. 10
Fuller v. Day Pub. Co.,
No. 030565104, 2004 WL 424505 (Conn. Super. Ct. Feb. 23, 2004), aff’d, 872 A.2d (Conn. App. Ct. 2005) .............................................................................................. 22, 23
Georgetti v. Nexstar Media Grp., Inc.,
No. NNHCV186087491S, 2019 Conn. Super. LEXIS 2280 (Conn. Super. Ct. Aug., 2019)
21, 28
Gifford v. Taunton Press, Inc.,
No. DBSCV186028897S, 2019 WL 3526461 (Conn. Super. Ct. July 11, 2019) .............. 20, 24
Goodrich v. Waterbury Republican-American, Inc., Conn. 107 (1982)........................................................................................................... 27
Grand River Enterprise Six Nations, Ltd. v. Pryor, F.3d 60 (2d Cir. 2007) ................................................................................................... 10
Guccione v. Hustler Magazine, Inc., F.2d 298 (2d Cir. 1986) ................................................................................................. 11
Heublein v. F.T.C., F. Supp. 123 (D. Conn. 1982) ........................................................................................ 16
Hoechst Diafoil Co. v. Nan Ya Plastics Corp., F.3d 411 (4th Cir. 1999) ................................................................................................ 34
Hunt v. National Broadcasting Co., F.2d 289 (9th Cir. 1989) ........................................................................................... 14, 19
Jensen v. Times Mirror Co., F. Supp. 304 (D. Conn. 1986) ........................................................................................ 26
Joseph Burstyn, Inc. v. Wilson, U.S. 495 (1952) ................................................................................................... 1, 25, 31
iv

Page 6 CASES
PAGE(s)
J.R. O’Dwyer Co. v. Media Mktg. Int’l, Inc., F. Supp. 599 (S.D.N.Y. 1991) ........................................................................................ 33
Louis Vuitton Mallatier S.A. v. Warner Bros. Entm’t Inc., F. Supp. 2d 172 (S.D.N.Y. 2012) ............................................................................. 31, 32
Marcy Playground, Inc. v. Capitol Records, F. Supp. 2d 277 (S.D.N.Y. 1998) ........................................................................... 10, 12, 33
Masson v. New Yorker Magazine, Inc., U.S. 496 (1991) ....................................................................................................... 12, 25
Mattel v. Walking Mountain Prods, F.3d 792 (9th Cir. 2003) ................................................................................................ 30
Mattel, Inc. v. MCA Records, F.3d 894 (9th Cir. 2002) ................................................................................................ 31
Meeropol v. Nizer, F.2d 1061 (2d Cir. 1977), cert. denied, 434 U.S. 1013 (1978) ........................................ 22
Metropolitan Opera Ass’n, Inc. v. Local 100, Hotel Employees & Rest. Employees Int’l.
Union, F.3d 172 (2d Cir. 2001) ........................................................................................... 17, 18
Miles v. City of Hartford, F. Supp. 2d 207, 216 (D. Conn. 2010), aff’d, 445 F. App’x 379 (2d Cir. 2011) .............. 26
Miller v. Miller,
No. 3:18-cv-01067(JCH), 2018 WL 3574867 (D. Conn. July 25, 2018) ................ 9, 10, 17, 18
Mitchell v. Cuomo, F.2d 804 (2d Cir. 1984) ................................................................................................. 16
Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Operating Co., F.3d 546 (4th Cir. 1994) .................................................................................................. 16
Nebraska Press Ass’n v. Stuart, U.S. 539 (1976) ............................................................................................................. 19
Nintendo of Am., Inc. v. Lewis Galoob Toys, Inc.¸ F.3d 1032 (9th Cir. 1994) ................................................................................................. 34
v

Page 7 CASES
PAGE(s)
Planned Parenthood of Minnesota, Inc. v. Citizens for Community Action, F.2d 861 (8th Cir. 1977) ................................................................................................ 16
Rogers v. Grimaldi, F. Supp. 112 (S.D.N.Y. 1988), aff’d, 875 F.2d 994 (2d Cir. 1989) ........................... 31, 32
Roy Exp. Co. Establishment v. Trustees of Columbia Univ., F. Supp. 1350 (S.D.N.Y. 1972) ...................................................................................... 14
Salinger v. Colting, F.3d 68 (2d Cir. 2010) ................................................................................................... 34
Schad v. Borough of Mt. Ephraim, U.S. 61 (1981) ......................................................................................................... 25, 31
Schutte Bagclosures, Inc. v. Kwik Lok Corp., F. Supp. 3d 245, 283 (S.D.N.Y. 2016), aff’d, 699 F. App’x 93 (2d Cir. 2017) ................ 29
Smith v. Wal-Mart Stores, Inc., F. Supp. 2d 1302 (N.D. Ga. 2008) ................................................................................. 30
Sugar Busters LLC v. Brennan, F.3d 258 (5th Cir. 1999) ................................................................................................ 32
Tom Doherty Assocs. v. Saban Entm’t, Inc., F.3d 27 (2d Cir. 1995) .....................................................................................................15
Twentieth Century Fox Film Corp. v. Marvel Enters., Inc., F.3d 253 (2d Cir. 2002) ................................................................................................. 34
United States v. Quattrone, F.3d 304 (2d Cir. 2005) ................................................................................................. 18
Wolston v. Reader’s Digest Ass’n, Inc., U.S. 157 (1979) ............................................................................................................. 23
Zupnik v. Associated Press, Inc., F. Supp. 2d 70 (D. Conn. 1998) .......................................................................... 20, 21, 22
vi

Page 8 STATUTES
PAGE(s)
Conn. Gen. Stat. § 52-196a(a)(1) ............................................................................................... 28
Conn. Gen. Stat. § 52-196a(a)(2) ............................................................................................... 27
Conn. Gen. Stat. § 52-196a(e)(3) ............................................................................................... 28 U.S.C. § 1125(c)(1) .............................................................................................................. 28 U.S.C. § 1125(c)(2)(A)......................................................................................................... 29
TREATISE McCarthy on Trademarks and Unfair Competition, § 24:104 (5th 3d. 2019) .......................... 29
vii

Page 9 Defendant Netflix, Inc. (“Netflix” or “Defendant”) respectfully submits this memorandum
of law in opposition to Plaintiffs’ motion for a temporary restraining order and preliminary
injunction against the distribution of Defendant’s film (“Plaintiffs’ Motion”).
PRELIMINARY STATEMENT
Plaintiffs’ Motion should be denied for a host of reasons. First, Plaintiffs are seeking an
eleventh hour gag order against constitutionally protected speech, mere days before the motion
picture at issue herein is to be released on Netflix. As the U.S. Supreme Court long ago
recognized: “The importance of motion pictures as an organ of public opinion is not lessened by
the fact that they are designed to entertain as well as to inform.” Joseph Burstyn, Inc. v. Wilson, U.S. 495, 501 (1952). As is explained in detail below, Defendant’s film, while entertaining
and largely comedic, is intended to bring attention to the abuse of offshore shell corporations and
tax shelters, and it is an indictment of the legal system that permits them. Plaintiffs’ Motion,
which seeks a virtually unheard of prior restraint on speech, is thus an affront to established First
Amendment principles. Second, Plaintiffs have utterly failed to demonstrate the irreparable
harm that is an essential prerequisite to the emergency relief they seek. Indeed, Plaintiffs’ delay
in filing their motion compels the conclusion that there is no urgency or irreparable harm.
Moreover, Plaintiffs admit that the reputational harm that they claim they might suffer has long
since occurred as a result of the news media frenzy engendered by the 2016 publication of the
Panama Papers. Third, Plaintiffs have not demonstrated a likelihood of success on the merits,
nor can they pass the constitutional requirement of showing actual malice on Netflix’s part. And
Plaintiffs’ Lanham Act claims fail as a matter of law. Their claim of dilution by “tarnishment”
of their logo – the use of which in the film is also protected under established First Amendment
jurisprudence – is laughable, given that the Complaint acknowledges that their reputations have

Page 10 already been so blackened as a result of the spotlight that the international press has been shining
on Plaintiffs for the last three and a half years – the result of which was the loss of all of their
clients, banks refusing to do business with them and the shuttering of their business.
The film at issue – The Laundromat (the “Film”) – was inspired by the notorious Panama
Papers, the 11.5 million documents that were hacked from Plaintiffs’ law firm by an anonymous
whistleblower, the 2016 release of which revealed over 200,000 offshore shell corporations and
bank accounts set up by Plaintiffs that had been abused by the elite and powerful to protect their
interests from exposure to tax, legal and other liabilities. The Panama Papers received
worldwide media attention, due in substantial part to the revelations of shell corporations and tax
shelters used by innumerable world leaders and celebrities, and their disclosure has played an
important role in criminal prosecutions. By November 2016, Europol reported that it had found,469 probable matches to criminal and terrorist organizations when they compared the Panama
Papers to their own files. Similarly, the Panama Papers provide an evergreen resource for
journalists to cross-check as stories develop involving allegedly corrupt actors and politicians,
including those currently occupying headlines in the U.S. (See Declaration of Tom J. Ferber,
dated October 16, 2019 (“Ferber Decl.”), Ex. G.) The Film, which The New York Times
described as “a didactic comedy, an earnest lesson in political economy dressed up as a farce”
(https://www.nytimes.com/2019/09/25/movies/the-laundromatreview.html?searchResultPosition=1), is a moral indictment of the “massive and pervasive
corruption of the legal system” and the elites who have no incentive to stop tax evasion,
including in the United States, as is stated in a central character’s closing monologue that breaks
the “fourth wall” to sound an alarm directly to the audience.

Page 11 Plaintiffs, attorneys who were licensed in Panama and their affiliated entities, “were
primarily engaged in the business of forming and maintaining offshore companies … for
clients.” (Compl. ¶¶ 1-3, 6.) While implying that most of the entities they set up were legitimate,
Plaintiffs acknowledge that a portion of the offshore corporations which they created for their
clients were subsequently utilized for criminal activity, including money laundering, tax evasion,
bribery and/or fraud. (Compl. ¶ 32.) Plaintiffs’ Complaint is replete with allegations about the
extensive damage done to Plaintiffs’ business and reputations as a result of the massive
international media coverage of the Panama Papers, which “led to closure of [their] offices and
ultimately the loss of [their] entire client base” as well as two criminal prosecutions in Panama
and an anticipated one in the United States. (Compl. ¶¶ 34 – 42, 124.)
Plaintiffs have inexplicably delayed in seeking the extraordinary relief of a temporary
restraining order, waiting until the end of the day on October 15, 2019 to file their application.
News that Netflix had “committed to finance and release” the Film, as well as the disclosure of
its a-list cast and director, first made headlines over a year ago. (Ferber Decl., Ex. H.)
Advertising for the Film began on or about August 28, 2019. (Declaration of Christian Davin,
dated October 16, 2019 (“Davin Decl.”), ¶ 4.) Plaintiffs claim to have been aware of the full
Film’s content as of September 10, 2019. (Aff. of Arthur Ventura, Jr. at ¶ 20.) Yet Plaintiffs did
not even give Netflix notice of their purported grievance until late in the day on Friday, October, 2019, when they sent a draft of the Complaint – a draft which was dated October 4, 2019.
(Declaration of Kate Chilton, dated October 16, 2019 (“Chilton Decl.”, ¶ 2.) The supporting
affidavit of Arthur Ventura, Jr. was sworn to on the same date. (See Ventura Aff. at p. 14.)
Thus, Plaintiffs have admittedly known all about the Film since at least September 10, and had a
Complaint and other papers drafted nearly two weeks ago, but they waited until two and a half

Page 12 days before the Film’s release on Netflix’s streaming platform (and after it was theatrically
released) to file their motion. Plaintiffs should not be allowed to benefit from a purported
emergency of their own making; if anything, they should be penalized for their delay, which
eviscerates their assertions of irreparable harm.
FACTUAL BACKGROUND
The Panama Papers Scandal
In April 2016, newspapers and media outlets around the world began publishing reports
regarding the methods used by wealthy and powerful people to hide income and avoid taxes
through the use of offshore bank accounts and shell companies. (Compl. ¶¶ 33-36). The primary
source for these bombshell reports was a cache of 11.5 million Mossack Fonseca & Co., S.A. (the
“Mossack & Fonseca Firm”) documents an anonymous whistleblower had provided to journalist
Bastian Obermayer of the German newspaper Suddeutsche Zeitung. (Compl. ¶ 28). Obermayer
enlisted the International Consortium of Investigative Journalists to review the massive corpus of
documents for approximately one year before publishing any reports regarding their contents.
(Compl. ¶¶ 30-31). These documents, dubbed the Panama Papers, referenced over 200,000
offshore entities created by the Mossack & Fonseca Firm, including many used for the benefit of
rich and famous people in both public and private sectors around the world. (Compl. ¶ 29).
The reporting on the Panama Papers and the Mossack & Fonseca Firm’s role in facilitating
tax avoidance and offshore banking for the wealthy precipitated numerous governmental
investigations and prosecutions, including two legal proceedings brought by Panamanian
authorities against Jurgen Mossack (“Mossack”) and Ramon Fonseca (“Fonseca”). (Compl. ¶ 41).
Since the release of the Panama Papers, Mossack and Fonseca have not hidden from the
international controversy. To the contrary, as Plaintiffs admit, Mossack and Fonseca spoke with

Page 13 investigative journalist Jake Bernstein. (Compl. ¶ 53). In addition, Mossack gave interviews to
CNBC and The Wall Street Journal in April 2016, and Fonseca gave an interview to reporters,
excerpts of which were subsequently published in a Reuters article and an AP Article in February. (Declaration of Tom J. Ferber, dated October 16, 2019 (“Ferber Decl.”), ¶ 6 & Exs. D-F).
As a result of the ongoing criminal investigations and prosecutions, Mossack and Fonseca
have been subject to arrest and bail conditions that confine them to Panama. (Compl. at p.5, ¶ 42).
In the immediate aftermath of the reporting on the Panama Papers (i.e., well before the production
or release of The Laundromat), banks refused to do business with Plaintiffs, clients ceased to do
business with Plaintiffs, and Plaintiffs’ law firm closed. (Compl. ¶¶ 38-40).
In or about November 2017, journalist Jake Bernstein released a “thoroughly researched”
book regarding the previously unknown financial dealings of wealthy individuals and institutions
that made use of the offshore banking and financial systems, entitled Secrecy World: Inside the
Panama Papers Investigation of Illicit Money Networks and the Global Elite (the “Book”).
(Compl. ¶¶ 46-58). Bernstein used the Panama Papers documents provided by the whistleblower,
as well as interviews with Mossack and Fonseca, as source material for the Book. (Compl. ¶¶ 4658).
The Laundromat
Sometime following the publication of the Book, Netflix agreed to distribute a film about
the Panama Papers that used the Book as inspiration. (Compl. ¶¶ 60-61). The resulting feature
film is entitled The Laundromat (the “Film”). (Compl. ¶¶ 80-84). The Film stars the actors Meryl
Streep, Gary Oldman, and Antonio Banderas and was directed by Steven Soderbergh. (Compl.
¶¶ 80-84). The Film does not purport to be a factual documentary or non-fiction adaptation of the
Book. To the contrary, as Plaintiffs acknowledge, the Book is now marketed as the “Inspiration

Page 14 for the Major Motion Picture.” (Compl. ¶ 67, emphasis added). As indicated in the Film’s
promotional trailer – which is obviously not a pure dramatic presentation of actual facts, but rather
a comedic morality tale about a system which invites and protects abuse – the Film is advertised
as “Based on Some Real Shit,” (see Compl. ¶ 78 at 0:23), not as a non-fiction documentary. The
full feature version of the Film opens with a title card facetiously stating that the Film is “Based
On Actual Secrets.” (Ferber Aff., Ex. B (emphasis added)). The Film ends with a disclaimer at
the 1 hour, 34 minute, 25 second mark stating “While the motion picture is inspired by actual
events and persons, certain characters, incidents, locations, dialogue, and names are fictionalized
for the purpose of dramatization. As to any such fictionalization, any similarity to the name or to
the actual character or history of any person, living or dead, or actual incident is entirely for
dramatic purposes and not intended to reflect on any actual character or history.” (Ferber Aff., Ex.
C).
Moreover, while the Film has characters bearing Mossack and Fonseca’s names, they are
cartoonish narrators who set up shell corporations around the world; it does not depict them as
direct participants in criminal activity. Rather, the Film saves its pointed critiques for the opacity
of the global banking system and the systemic corruption of wealthy individuals that permit that
system to perpetuate itself.
These palpably farcical characters open the Film with an explanation about the genesis of
money and credit with comedic dialogue about the impracticality of bartering bananas (which “turn
brown over time”) and cows (which “can wander away”). “Credit,” they explain, stands in for the
“tangible” cow, and because of credit, “even if you didn’t have all the bananas you need … you
could borrow bananas from the future.” Noting that the world of finance has since “gotten a little
more complicated” and involves trading things that are “very different from cows,” they then

Page 15 introduce the vignettes that follow as stories “that are not about us; they are more about
you.” These narrators remain farcical characters. As they describe their business, they state that
they don’t even know who all of their clients are.
Later in the Film, after the vignettes of cheating and other illicit activity by other characters,
these characters exclaim that the idea for the system of shell corporations and tax shelters that has
been depicted came from the United States – “where most ideas about money come from.” They
explain that it started with Delaware’s “corporate-friendly tax laws.” They continue: “The director
of this movie has five [Delaware corporations]. Even our writer has one.” And it’s legal – it’s
called “tax avoidance.” The Film depicts the April 2016 hacking of the Panama Papers by “John
Doe,” and their subsequent worldwide publication. Plaintiffs’ tax shelter and shell corporation
mill is exposed. President Obama is seen saying that the problem is that a lot of this is legal. The
narrators (i.e., Mossack and Fonseca) explain that they “didn’t write the laws; [they] just wrote
contracts!” They are ruined by the ensuing scandal, close their businesses, and are arrested because
some of the shell entities they formed have been connected to suspected criminals. Sitting in jail
(or what is revealed to be dramatic/comedic jail scenery), Mossack complains: “You want to go
back to bananas?!” The Film ends with words from “John Doe’s” so-called “manifesto,” calling
on governments around the world to end the pervasive corruption described in the Film.
Netflix began advertising the Film via print advertisements and trailers on August 28, 2019.
(Davin Decl. ¶ 4). The Film was first screened on September 1, 2019 at the Venice Film Festival.
(Davin Decl. ¶ 2). The Film was subsequently exhibited on September 9, 2019 at the Toronto Film
Festival, and then was released in select theaters in New York and Los Angeles on September 27,. (Davin Decl. ¶ 2). The Film is scheduled to become available to Netflix’s subscribers via
its streaming service on October 18, 2019. (Davin Decl. ¶ 3).

Page 16 The Complaint
In a six page “preliminary statement” of unnumbered paragraphs, the Complaint alleges,
inter alia, that the Film’s trailer (and therefore the Film) shows the “‘download’ of hacked ‘Panama
papers’ in progress.” (Compl. at p.3). The Complaint acknowledges that “the movie has been
released into limited public engagements” and that its “expected release date to a general public
audience in theaters was September 27, 2019.” (Id. at p.5). The Complaint alleges that “the
anticipated release dates correspond with times during which the Plaintiffs will be defending
criminal charges against them in Panama,” and speculates that the Film “will likely precipitate
Panamanian prosecutors to investigate any accusation or criminal implications revealed
therein.” It also alleges that “the two current prosecutions have resulted in ‘country arrest’ and
bail, and both cases were precipitated by media accounts of Panama Papers allegations.” (Id.) It
further alleges that Mossack and Fonseca “are the subjects of an FBI investigation in the Southern
District of New York that could result in a Trial [sic] in the United States” and complains that the
Film “poses an immediate threat and harm to the Plaintiffs’ fair Trial [sic] rights.” (Id. at 6).
The Complaint subsequently makes the following allegations in numbered paragraphs:
Mossack and Fonseca “were licensed attorneys … residing in the Republic of Panama.” (Id. ¶). Plaintiffs “were primarily engaged in the business of forming and maintaining offshore
companies … for clients ….” (Id. ¶ 6). Plaintiff’s “products” were sold in Panama and other
countries commonly referred to as “tax havens.” (Id. ¶ 7). The hacked Panama Papers referenced
over 200,000 entities created by Plaintiffs. (Id. ¶¶ 28-29). A so-called “minute percentage” of the
over 200,000 offshore corporations that Plaintiffs created for their clients were subsequently
utilized for criminal activity including money laundering, tax evasion, bribery and/or fraud. (Id. ¶). As a result of the revelations from the “hack and release” of the Panama Papers, Plaintiffs

Page 17 were rumored to have dealt with and/or advised various heads of state and other persons “on the
subject matter of tax avoidance, tax evasion, money laundering, fraud and/or other crimes.”
Further, Plaintiffs were rumored to have dealt with and/or advised “notorious drug cartel and/or
other organized crime leaders” on such subjects. (Id. ¶¶ 34-35). The press and media generated
by the Panama Papers hack damaged Plaintiffs’ “client relations and ongoing business prospects.“
(Id. ¶ 37). As a result of news reports of the Panama Papers’ revelations, and rumors about
Plaintiffs’ alleged clients, resulted in “banks and other third parties refus[ing] to do business” with
Plaintiffs.” (Id. ¶ 38). “Plaintiffs all faced bank account closures and to date, all [Plaintiffs] remain
unable to bank anywhere in the world.“ (Id. ¶ 39). Plaintiffs’ “inability to bank led to closure of
its offices and ultimately the loss of its entire client base.” (Id. ¶ 40). “As a result of the ‘hack and
release’ investigations the Plaintiffs . . . have suffered damage to the goodwill and value of their
businesses.“ (Id. ¶ 43). Plaintiffs complain about their allege portrayal in the Film’s trailer (id. ¶), and describe the various vignettes in the Film (id. ¶¶ 94-97). The Complaint alleges that the
use of Plaintiffs’ logo in the Film and trailer “greatly diminishes and/or dilutes” the logo’s “value
and goodwill.” (Id. ¶¶ 101, 105). Plaintiffs also allege that “as a direct and proximate result” of
the Film, “Plaintiffs’ personal and professional reputations have been injured.” (Id. ¶ 127).
ARGUMENT
The standard for securing the extraordinary relief of a preliminary injunction in the Second
Circuit is well-established. The proponent of the motion carries the heavy burden of showing:
“(1) irreparable harm and (2) either (a) likelihood of success on the merits, or (b) sufficiently
serious questions going to the merits of its claims to make them a fair ground for litigation, plus a
balance of the hardships tipping decidedly in favor of the moving party.” Miller v. Miller, No.:18-cv-01067 (JCH), 2018 WL 3574867, at *2 (D. Conn. July 25, 2018) (citations omitted).

Page 18 “Additionally, the moving party must show that a preliminary injunction is in the public interest.”
Id. (citation omitted).
“A showing of irreparable harm is the single most important prerequisite for the issuance
of a preliminary injunction.” Id. (quoting Faiveley Transp. Malmo AB v. Wabtec Corp., 559
F.3d 110, 118 (2d Cir. 2009)). “To satisfy the irreparable harm requirement, [Plaintiffs] must
demonstrate that absent a preliminary injunction [they] will suffer an injury that is neither remote
nor speculative, but actual and imminent and one that cannot be remedied if a court waits until
the end of trial to resolve the harm.” Brooks v. Consensus Strategies, LLC, No. 3:07-cv-0560
(PCD), 2007 WL 9754573, at *2 (D. Conn. June 18, 2007) (quoting Grand River Enterprise Six
Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir. 2007)). Irreparable harm exists only where a
monetary award cannot provide adequate compensation for the alleged injury. Id. The standard
for the issuance of a temporary restraining order is the same as that for the issuance of a
preliminary injunction. Id. Here, Plaintiffs have not met their heavy burden.
I.
PLAINTIFFS HAVE FAILED TO DEMONSTRATE IRREPARABLE HARM
As noted above, where a plaintiff cannot prove irreparable harm, a preliminary injunction
must be denied. Miller, 2018 WL 3574867, at *2 (citing Faiveley, 559 F.3d at 118). Here,
Plaintiffs cannot prove irreparable harm for two independent reasons. First, the damage Plaintiffs
allege has already substantially occurred. This alone is sufficient basis for the Court to deny
Plaintiffs’ request for a preliminary injunction. See Brooks, 2007 WL 9754573, at *2 (denying
temporary restraining order and preliminary injunction where “[t]he harm that [plaintiff] alleges
in his Complaint has already occurred”); Marcy Playground, Inc. v. Capitol Records, 6 F. Supp.
2d 277, 282 (S.D.N.Y. 1998) (denying preliminary injunction against record albums that had

Page 19 already been released without crediting plaintiffs, noting the alleged injury “already has occurred
in virtually all material respects.”).
Here, Plaintiffs complain that they are portrayed in The Laundromat as being behind a
massive system of shell corporations and offshore accounts that provide cover for a variety of
unethical and criminal activity, and that portrayal will result in injury to their personal and
professional reputations.
(Compl. ¶¶ 126-28.)
However, Plaintiffs acknowledge in their
Complaint that some of the offshore companies created by Mossack Fonseca were in fact involved
in criminal activity. For instance, they admit that at least some percentage of offshore corporations
created by Mossack Fonseca “appear[] to have been utilized by some [ultimate end users] for
criminal activity including, but not limited to, money laundering, tax evasion, bribery and/or
fraud.” (Id., ¶ 32; see id., ¶ 48 (acknowledging that some “number of companies sold by Plaintiffs
to original clients were connected to [ultimate end user] criminal activity”.) Plaintiffs further
object that the Film inaccurately portrays them as having connections to Cartel murders and
Russian gangster money laundering. (Id., p. 5.1) However, mere pages later, they admit that socalled rumors resulting from the release of the Panama Papers themselves – years before the release
of Defendants’ Film – painted them as involved with Russian President Vladimir Putin, former
President of Ukraine Petro Poroshenko, as well as “notorious drug Cartel and/or other Organized
Crime leaders.” (Id., ¶¶ 34-35.) Clearly, Plaintiffs’ reputations were sullied long before the release
of Defendants’ Film. See Guccione v. Hustler Magazine, Inc., 800 F.2d 298, 303 (2d Cir. 1986)
(“[A] plaintiff’s reputation with respect to a specific subject may be so badly tarnished that he
cannot be further injured by allegedly false statements on that subject.”) (citation omitted).

The first seven pages of Plaintiffs’ Complaint contain unnumbered paragraphs, constraining Defendant to reference
only page numbers.

Page 20 Indeed, as Plaintiffs further acknowledge, long before the release of Defendant’s Film, the
“press and media generated by the Panama Papers hack severely damaged [their] client relations
and ongoing business prospects.” (Id., ¶ 37.) Banks and other entities refused to do business with
them, and they ultimately were forced to shutter their doors due to the “loss of [their] entire client
base.” (Id., ¶¶ 38-40.) As in Marcy Playground, “a preliminary injunction here would be very
much like locking the barn door after the horse is gone.” 6 F. Supp.2d at 282.
Plaintiffs offer further speculation about potential harm that might result from the
possibility that Panamanian prosecutors would bring additional charges against them, or change
the prosecution of their pending cases, as a result of the conduct allegedly portrayed in the Film.
As an initial matter, the Film is a largely comedic morality tale that clearly states it is “based on”2
real events, but that it is an obviously fictionalized story. Davis v. Costa-Gavras, 654 F. Supp., 657 (S.D.N.Y. 1987) (citing disclaimer as evidence that “film does not purport to depict . . .
the events precisely as they occurred”).
As the Supreme Court has recognized, audiences
understand the difference between fictionalized portrayals and news reporting, which is intended
to be literally true and accurate. Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 513 (1991).
Moreover, while the Film identifies Plaintiffs as central figures in the story it is telling about the
use of offshore corporations, it does not portray them directly participating in the murders, drug
cartels, and other criminal activity referenced in the Complaint.3 Rather, it makes the point that
much, if not all, of their conduct is legal, and its conclusion makes clear that it is an indictment of
the system that enables such conduct. Plaintiffs maintain throughout their papers that they are

The trailer, which is repeatedly referenced in the Complaint (see, e.g., Compl., ¶ 78) offers a tongue-in-cheek
description of the Film as “Based on Some Real Shit.” The Film itself similarly notes with a wink that its largely
comedic presentation is “Based on Actual Secrets.” (See Ferber Decl. Ex. B.)
The Mossack character does appear at the end of the vignette about a wealthy African businessman residing in the
U.S. who uses a shell game to bribe and then cheat his own daughter, but that conduct is not criminal.

Page 21 portrayed as villains in the Film, but they themselves supply evidence that that was neither the
intent of the creators nor the takeaway of a reasonable viewer.4 For instance, Plaintiffs note that
the director, Steven Soderbergh, stated in an interview:
Scott and I were very adamant that they [Jurgen Mossack and
Ramon Fonseca] not be stock villains, because we felt they as people
were more complicated than that and the situation itself was more
complicated than that. They did not invent these structures. This
has been going on for a long time. They just figured out a way to
do a high-volume business creating these kind of entities.
(Pl. Br. at 24.) In other words, the Film is a critique of what it views as a corrupt system that
Plaintiffs helped enable, and that is the anticipated perception of an objective viewer of the Film.
Thus, the harm that Plaintiffs allege is highly unlikely to occur as a result of the Film.
Indeed, Plaintiffs themselves acknowledge the speculativeness of the prospective harm that
they allege. For instance, Plaintiffs plead that their portrayal in the Film “may subject Plaintiffs to
unnecessary and unwanted legal attention,” and that they “could be subjected to additional bail
and/or conditions for each new crime imputed to them in the movie.” (Compl. at p. 5.) Likewise,
they allege that the Film portrayal “stand[s] to” pollute “a potential jury pool” in the U.S. (Id. at
p. 6.) These claims are quite simply too remote and speculative to support a finding of irreparable
harm. As for the purely speculative possibility of further investigations in Panama, Plaintiffs are
already being prosecuted there (id. ¶¶ 41-42), presumably for their potential involvement in
corruption, money laundering, and tax fraud, all of which were the subject of the Panama Papers.
It strains credulity to conclude that the Film will cause investigators to widen their investigation,

Plaintiffs cite to the Affidavit of Arthur Ventura to support speculative propositions such as that the streaming
distribution of the Film will subject Plaintiffs to criminal prosecution by the FBI. But Mr. Ventura’s various
“opinions” are not based on sufficient facts nor are they the product of reliable principles and methods. Cf. Fed. R.
Evid. 702(b)-(c). Rather, Mr. Ventura opines, without any reasoned, scientific basis, or polling, or survey data, that
audiences will leave the Film with the impression that Mossack and Fonseca were directly responsible for certain
criminal activities. But Mr. Ventura’s long career in law enforcement does not make him a reliable arbiter of whether
a given scene will have a “chilling effect” on the Film’s audience. (Ventura Aff. ¶ 32).

Page 22 or that the Film’s creators will be at fault if Panamanian prosecutors conclude that additional
charges should be brought against Plaintiffs.
Plaintiffs’ argument about polluting a potential jury pool is yet more remote given that they
have not even been charged in the United States. (Pl. Br. at 9-10.) Plaintiffs attempt to shore up
their jury pool argument by pointing to the indictment of one of their associates and the reference
of their firm in the charging papers. (Id. at 9.) However, Plaintiffs have no privileged view into
the minds of the federal prosecutors in the Southern District of New York. And even if Plaintiffs
were charged, the release of the Film is unlikely to reach a wider audience than the published
reports of the Panama Papers, nor is it likely to prejudice every potential New Yorker juror who
may not have already read about and formed an opinion of Plaintiffs. In fact, that is precisely what
measures such as voir dire are intended to protect against. See Hunt v. National Broadcasting Co., F.2d 289, 296 (9th Cir. 1989) (denying TRO and preliminary injunction against broadcast of
docudrama concerning plaintiff’s planning and commission of a murder, notwithstanding his claim
the Film would pollute the jury pool in his pending case, finding that he had failed to meet the high
burden of showing that the absence of a preliminary injunction would prevent securing twelve
jurors who could render an unbiased verdict, including because he failed to consider alternatives
to prior restraint, such as voir dire, jury instructions, or change of venue). In sum, these allegations
are textbook examples of remote and speculative harm that cannot support the issuance of a
preliminary injunction. Roy Exp. Co. Establishment v. Trustees of Columbia Univ., 344 F. Supp., 1353-54 (S.D.N.Y. 1972) (finding possibility of future harm insufficient to support issuance
of preliminary injunction).
Plaintiffs themselves are likely aware of these weaknesses in their case, given that they
delayed for nearly a year and a half from the publication of Mr. Bernstein’s book on which the

Page 23 Film was allegedly based (in November 2017, according to Amazon5), which they also claim to
be defamatory6 (Compl. ¶ 54), and then continued to delay another approximately six weeks while
the Film was being advertised throughout the United States in print advertisements and on
YouTube beginning August 28, 2019, shown at international film festivals, and then released in
theaters in New York and Los Angeles on September 27, 2019. (Davin Decl. ¶¶ 2-4.) Based upon
the October 4, 2019 date in the draft Complaint forwarded by Plaintiffs’ counsel to Netflix on the
evening of Friday, October 11, the Complaint had been complete for at least a week, but Plaintiffs
chose not to file or serve it. Plaintiffs’ substantial delay in seeking to enjoin the Film – all while
Netflix invested resources in securing theater space, creating advertising, and disseminating
marketing (Davin Decl. ¶¶ 5-7) – weighs heavily against a finding of irreparable harm. Citibank,
N.A. v. Citytrust, 756 F.2d 273, 276 (2d Cir. 1985) (denying preliminary injunction due to
plaintiff’s 10-week delay, and noting, “Preliminary injunctions are generally granted under the
theory that there is an urgent need for speedy action to protect the plaintiffs’ rights. Delay in
seeking enforcement of those rights, however, tends to indicate at least a reduced need for such
drastic, speedy action.”) (citations omitted); see Tom Doherty Assocs. v. Saban Entm’t, Inc., 60
F.3d 27, 39 (2d Cir. 1995) (holding that “[a] district court should generally consider delay in
assessing irreparable harm,” particularly where “the defendant had taken costly steps during the
period of delay that would be at least temporarily undone by injunctive relief”) (citations omitted).
The cases Plaintiffs cite in support of their claimed irreparable harm do not salvage their
failed position. Plaintiffs claim that they have established irreparable harm if they will be deprived
of a constitutional right, presumably referencing their speculative claim that the Film could impact

Available at https://www.amazon.com/Secrecy-World-Investigation-Illicit-Networks/dp/1250126681.
Significantly, Plaintiffs apparently never asserted legal claims against the book, even though the Complaint
contains a litany of allegations about it and its author. (See, e.g., Compl. ¶¶ 46-59.)

Page 24 either a Panamanian investigation or a potential jury pool in the U.S.
Putting aside the
speculativeness of the harm, the cases Plaintiffs cite are completely inapposite to the case at hand.
Both Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984), which implicates the Eighth
Amendment in a prison overcrowding case, and Heublein v. F.T.C., 539 F. Supp. 123 (D. Conn.), concerning Federal Trade Commission approval for a corporate merger, involve state actors
allegedly depriving citizens of their constitutional rights. Here, Defendant is not a state actor that
is constitutionally required to ensure it does not deprive citizens of their constitutional rights.
Plaintiff’s second claimed irreparable harm, loss of goodwill or damage to reputation, is
quite simply meritless given the acknowledged severe damage to Plaintiffs’ reputations that has
already occurred over the last several years – long before the release of the Film as a result of the
publication of the Panama Papers. (Compl. ¶¶ 37-40.) Plaintiffs’ cited cases, in addition to being
non-binding cases from the Fourth and Eighth Circuits, respectively, stand for the unremarkable
proposition that damage to reputation may support a finding of irreparable harm. They have no
bearing on Plaintiffs’ particular problem, namely, that their reputations and goodwill have already
been so damaged that they have already lost all of their clients and were forced to close their
business well over a year before the release of the Film. (Pl. Br. at 14; Compl. ¶ 40.) See MultiChannel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 22 F.3d 546, 552 (4th Cir.) (involving a dispute between two competing cable companies, but the plaintiff had suffered
no independent reputational damage apart from the alleged conduct of the defendant); Planned
Parenthood of Minnesota, Inc. v. Citizens for Community Action, 558 F.2d 861, 867 (8th Cir. 1977)
(finding Planned Parenthood’s business – which had suffered no reputational damage – would be
imperiled by the prospect of having to interrupt its service; here, Plaintiffs’ business has already

Page 25 been interrupted). Furthermore, Plaintiffs offer no evidence that their clients are the likely
consumers of Defendant’s Film.
Thus, Plaintiffs fail to demonstrate that they are likely to suffer irreparable harm in the
absence of an injunction.
II.
PLAINTIFF IS NOT LIKELY TO SUCCEED ON THE MERITS OF ITS CLAIMS
A. Plaintiffs’ Requested Preliminary Injunction Is An Unconstitutional Prior
Restraint
As a threshold matter that should obviate the need to address likelihood of success on the
merits, the requested injunction is an unconstitutional prior restraint on free expression. It seeks
to enjoin Netflix’s continued showing of its Film, as well as its release to its subscribers on the
Netflix platform, before that speech has been adjudicated to be defaming – which it is unlikely to
be for the reasons described in Section II.B below. “A prior restraint on expression comes . . .
with a heavy presumption against its constitutional validity. Indeed, prior restraints are the most
serious and least tolerable infringement on First Amendment rights.” Metropolitan Opera Ass’n,
Inc. v. Local 100, Hotel Employees & Rest. Employees Int’l. Union, 239 F.3d 172, 176 (2d Cir.). “When a prior restraint takes the form of a court-issued injunction, the risk of infringing
on speech protected under the First Amendment increases.” Id. (citation omitted).
Beyond the First Amendment’s “heavy presumption” against prior restraints, “courts have
long held that equity will not enjoin a libel.” Id. (citations omitted); see American Malting Co. v.
Keitel, 209 F. 351, 354 (2d Cir. 1913) (“Equity will not restrain by injunction the threatened
publication of a libel, as such, however great the injury to property may be. This is the universal
rule in the United States…”). “Thus, because defamation can ordinarily be remedied by damages,
injunctions are not appropriate in such actions absent extraordinary circumstances, such as
intimidation and coercion.” Miller, 2018 WL 3574867, at *3. “Indeed, even where extraordinary

Page 26 circumstances are present, the Second Circuit has suggested that First Amendment principles may
nonetheless prohibit granting an injunction.” Id. (citing Metropolitan Opera, 239 F.3d at 177).7
Here, no such extraordinary circumstances are present, and the established rule against
prior restraints on speech bars Plaintiffs’ requested temporary restraining order and preliminary
injunction. Plaintiffs urge the Court that the potential for the Film to result in “unnecessary and
unwanted legal attention” (Compl., p. 5) justifies undermining Defendant’s First Amendment
protections. Not so. First, the Film does not attempt to intimidate or coerce Plaintiffs. Miller, WL 3574867, at *2. Thus, there are no extraordinary circumstances here – just an ordinary
defamation action, which Second Circuit precedent firmly establishes does not warrant the
issuance of an injunction. See, e.g., United States v. Quattrone, 402 F.3d 304, 309-12 (2d Cir.) (Sotomayor, J.) (overruling district court’s order barring publication of juror’s names to
ensure a fair trial, stating the order was a prior restraint and an infringement on the press’ freedom
to publish information).
Second, even if potential adverse legal ramifications were somehow qualified as
extraordinary circumstances justifying departure from the established rule, as already explained,
here the harm Plaintiffs allege is speculative at best. They have already admitted that they, or
offshore corporations they created, were in fact involved in criminal conduct, and that in fact they
are already being prosecuted for such conduct. Notwithstanding Plaintiffs’ protestations to the
contrary, there is no reason to believe that this Film will necessarily result in any additional

Plaintiffs cite one case, Bingham v. Straude, 184 A.D.2d 85 (1st Dep’t 1992), for the proposition that where all the
elements for preliminary injunctive relief were demonstrated, injunctive relief based upon a claim of libel was
appropriate. However, Bingham is distinguishable on its facts. It did not involve a media defendant or an artistic or
expressive work. Rather, plaintiff was being maligned and harassed by his ex-lover, who was sending communications
to his family and friends alleging sexual misconduct, among other things. Beyond her harassing conduct, the
defendant seemed unstable, lacked credibility in the defamatory comments she made about plaintiff, and regularly
contradicted herself in her own filings, including by claiming she had born plaintiff’s child and then denying that she
ever made that allegation. Thus, this case is an outlier, manifestly different from the one before the Court, which does
not undermine the legitimacy of the general rule against prior restraints in libel cases.

Page 27 prosecutions or investigations, or that all potential jurors in New York will be compromised. The
Ninth Circuit addressed this precise issue in Hunt v. National Broad. Co., 872 F.2d 289, 296 (9th
Cir. 1989). There, the court affirmed the denial of a TRO and preliminary injunction against
NBC’s scheduled broadcast of docudrama “Billionaire Boys Club” concerning plaintiff’s planning
and commission of a murder. The plaintiff alleged that the airing of the docudrama would impede
his right to a fair trial. The Ninth Circuit pointed out that the controlling Supreme Court precedent,
established in Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 562 (1976), sets out an exacting
standard, under which a prior restraint is permitted “only if its absence would prevent securing
twelve jurors who could, with proper judicial protection, render a verdict based only on the
evidence admitted during trial.” Hunt, 872 F.2d at 295 (citation omitted). The Ninth Circuit found
that plaintiff failed to make the necessary showing, including because he had not demonstrated
that alternatives to prior restraint, such as voir dire, jury instructions, or change of venue, would
not suffice to protect his rights. Id. at 295-96. Finally, because the docudrama had already aired,
the proposed prior restraint would not effectively protect his rights: “NBC’s docudrama aside,
substantial and unrestrained publicity concerning Hunt and the Billionaire Boys Club has already
been exposed to the public.” Id. at 296. The same analysis applies here, and Plaintiffs’ arguments
in favor of a TRO and preliminary injunction should be similarly rejected.
Finally, and significantly, The Laundromat – which uses a palpably comedic, at times
farcical, entertainment vehicle to expose an immoral financial system – does not portray Plaintiffs
as direct participants in murders, drug-dealing, and other criminal activity. In fact, it portrays
Plaintiffs (in a patently caricaturish, non-factual manner) as being largely oblivious to the ways in
which some of the shell entities they have set up are being abused, and it indicts the system for
making such enterprises largely, if not entirely, legal. Ferber Decl., Ex. A. Therefore, the

Page 28 speculative and uncertain harm to Plaintiffs alleged in the Complaint cannot justify the certain
interference with Defendant’s First Amendment rights and its ability to participate in the public
discourse on this important matter of public concern.
B. Plaintiffs Are Unlikely To Succeed On The Merits Of Their Defamation
Claims
Under Connecticut law, to prove defamation, Plaintiffs must demonstrate that: “(1) a
defamatory statement was made by the defendant; (2) the defamatory statement [of fact] identifies
the plaintiff to a reasonable reader; (3) the defamatory statement is published to a third person; and
(4) the plaintiff’s reputation suffers injury.” Zupnik v. Associated Press, Inc., 31 F. Supp. 2d 70, (D. Conn. 1998) (citation omitted); Gifford v. Taunton Press, Inc., No. DBSCV186028897S, WL 3526461, at *12 (Conn. Super. Ct. July 11, 2019).
Plaintiffs’ defamation claim fails for three independent reasons: (1) the Film is not a false
publication of fact concerning Plaintiffs; (2) the injury to Plaintiffs’ reputation has already
occurred due to the frenzy of media attention surrounding the 2016 publication of the Panama
Papers, and no further injury will result from Defendant’s Film; and (3) Plaintiffs are public figures
who may recover for injury to reputation only upon clear and convincing proof that the defamatory
falsehood was made with actual malice, which Plaintiffs cannot do.. The Film Is Not A False Publication Of Fact Concerning Plaintiffs
Plaintiffs’ defamation claim fails because the Film is not a false publication of fact
concerning Plaintiffs. First, to the extent that the Film portrays Plaintiffs as characters engaged in
activity that enables criminal activity – which is not the central point of the Film, as explained
above – it meets the substantial truth standard set forth under the Second Circuit’s defamation law.
See Chau v. Lewis, 771 F.3d 118, 129 (2d Cir. 2014) (finding that a statement need not be
completely true, but can be substantially true, as when the overall gist or substance of the

Page 29 challenged statement is true); Georgetti v. Nexstar Media Grp., Inc., No. NNHCV186087491S, Conn. Super. LEXIS 2280, at *13 (Conn. Super. Ct. Aug. 15, 2019) (“Contrary to the
common-law rule that required the defendant to establish the literal truth of the precise statement
made, the modern rule is that only substantial truth need be shown to constitute the justification.”).
Here, Plaintiffs have admitted that offshore companies created by their firm were
implicated in criminal activity, including money laundering, tax evasion, bribery, and fraud.
(Compl., ¶¶ 32, 48.) The fact that dialogue or some subplots of the storyline of The Laundromat
were fictionalized does not change the substantial truth of the Film’s narrative.. The Injury to Plaintiffs’ Reputation Has Already Occurred
A necessary element of pleading and proving a defamation claim is that Plaintiffs’
reputation suffers an injury as a result of the allegedly defamatory statement. See Zupnik, 31 F.
Supp. 2d at 72. Here, as Plaintiffs themselves acknowledge, their reputations have already been
“severely damaged,” ultimately resulting in the loss of their “entire client base” and the closure of
the firm. (Compl., ¶¶ 37-40.) In other words, “[Plaintiffs’] reputation with respect to [this] specific
subject [is] so badly tarnished that [they] cannot be further injured by allegedly false statements
on [this] subject.” Guccione, 800 F.2d at 303 (citation omitted); see Cardillo v. Doubleday & Co., F.2d 638, 639 (2d Cir. 1975). Thus, Plaintiffs cannot make out a prima facie case of
defamation.. Plaintiffs Are Public Figures But Cannot Prove Actual Malice
As noted above, under Connecticut defamation law, “[t]hose who are public figures . . .
may recover for injury to reputation only on clear and convincing proof that the defamatory
falsehood was made with such actual malice.” Zupnik, 31 F. Supp. 2d at 72 (citations & quotations
omitted).

Page 30 a. Plaintiffs Are Public Figures
Those who play central roles in crimes or scandals are often found to be public figures for
the purposes of reporting and narratives concerning those incidents. In Zupnik, for instance, the
court concluded the plaintiff, the wife of a doctor who had become notorious as a result of
numerous allegations of criminal conduct and professional negligence, was “thrust into the role of
a public figure by virtue of her marriage to Dr. Zupnik.” Id.; see Meeropol v. Nizer, 560 F.2d, 1066 (2d Cir. 1977), cert. denied, 434 U.S. 1013 (1978) (“In the course of extensive public
debate revolving about the Rosenberg Trial [their children] were cast into the limelight and became
public figures under the [Supreme Court’s] Gertz standards.”); Dameron v. Washington Magazine,
Inc., 779 F.2d 736, 741 (D.C. Cir. 1985) (Air Traffic Controller who was an ordinary citizen
became an involuntary public figure in relation to discussions of the air crash that took place while
he was on duty); Fuller v. Day Pub. Co., No. 030565104, 2004 WL 424505, at *5 (Conn. Super.
Ct. Feb. 23, 2004), aff’d, 872 A.2d 925 (Conn. App. Ct. 2005) (finding plaintiff was a limited
purpose public figure where she “voluntarily injected herself into the limelight by committing a
crime,” and “invited public comment relating to her involvement in a high profile criminal case. .
.”).
As in Zupnik, here Plaintiffs, too, have become public figures due to their central role in an
extensive public debate following the release of the “Panama Papers” and the system of shell
corporations, tax evasion, and corruption which was thereby revealed.
According to the
Complaint, Plaintiffs already were well-known worldwide as a result of their work in the offshore
industry. (Compl., ¶¶ 18-19.) Following the publication of the “Panama Papers,” they further
involved themselves in the public debate concerning that topic by, amongst other things, giving
interviews to national news outlets, including CNBC and the Wall Street Journal, and even

Page 31 speaking to the author of the book on which the movie was based.8 (Ferber Decl., ¶ 6 & Exs. DF; Compl. ¶ 53.) Thus, Plaintiffs have “voluntarily inject[ed] [themselves] or [been] drawn into a
particular public controversy and thereby become[] . . . public figure[s] for a limited range of
issues.” Fuller, 2004 WL 424505, at *5.
In defense of their claim not to be public figures, Plaintiffs cite Wolston v. Reader’s Digest
Ass’n, Inc., 443 U.S. 157, 168 (1979), which found that the nephew of accused Soviet spies who
refused to appear for grand jury testimony was not a public figure in connection with that
controversy. Wolston is distinguishable on its facts. First, the plaintiff there was tangential to the
actual controversy, which involved his aunt and uncle, unlike the Plaintiffs here, who are
undeniably at the center of the web of offshore tax shelters that are central to the story. Second,
in Wolston, the Court emphasized that the plaintiff was a private individual who occupied a
position of “relative obscurity.” Id. at 165. Here, in contrast, Plaintiffs allege that they had
significant reputations prior to the release of the Panama Papers, and after their release, they
continued to insert themselves into the public controversy, including by granting interviews to
major news outlets, such as CNBC and the Wall Street Journal, and speaking with Mr. Bernstein
concerning the Book. (Ferber Decl., ¶ 6 & Exs. D-F; Compl., ¶ 53.)
b. Plaintiffs Have Not Sufficiently Alleged And Cannot Prove Actual Malice
Therefore, to support their defamation claim, Plaintiffs are required to prove that Defendant
acted with actual malice in making the allegedly defamatory statements in the Film, meaning that
they acted with actual knowledge of the falsity of the statements or with reckless disregard as to
their truth. Biro v. Conde Nast, 963 F. Supp. 2d 255, 276 (S.D.N.Y. 2013), aff’d, 877 F.3d 541

Jurgen Mossack gave interviews to CNBC and the Wall Street Journal in April 2016, and Ramon Fonseca gave an
interview to journalists, excerpts of which were subsequently published in Reuters and Associated Press Articles.
(Ferber Decl., ¶ 6 & Exs. D-F.)

Page 32 (2d Cir. 2015), aff’d, 622 F. App’x 67 (2d Cir. 2015); Gifford, 2019 WL 3526461, at *12. Actual
malice is “a difficult standard to meet, and quite purposefully so,” given the importance of the free
expression right at stake. Biro, 963 F. Supp. at 277. Furthermore, “not only is proving actual
malice a heavy burden, but, in the era of Iqbal and Twombly, pleading actual malice is a more
onerous task as well.” Id. at 278. Following the Supreme Court’s decision in Iqbal, where a
particular state of mind is a necessary element of a claim, the pleading of that state of mind must
be plausible and supported by factual allegations, not mere conclusory recitations of the legal
standard. See id. at 278. This is especially warranted in the context of defamation cases given the
difficulty of proving actual malice and the fact that actual malice must be proven by clear and
convincing evidence in order for the plaintiff to succeed. Id.
Here, there are no allegations in the Complaint that sufficiently plead actual malice.
Instead, Plaintiffs do no more than recite the bare legal standard of actual malice, hoping the Court
will overlook their failure to properly plead their claim. (See, e.g., Compl., ¶¶ 122-23.) In fact,
the Complaint actually underscores the fact that Defendant did not act with the requisite disregard
for truth required by a defamation cause of action. For instance, Plaintiffs allege that Netflix based
the film on Mr. Bernstein’s book (Compl., ¶¶ 61-62), the credibility of which Netflix would have
no reason to doubt, particularly given that Plaintiffs never asserted defamation claims based on the
book in the nearly two years since it was published. Davis v. Costa-Gavras, 654 F. Supp. 653, (S.D.N.Y. 1987) (finding no actual malice where maker of docudrama relied on book in
creation of film).
Furthermore, it is well-established that fictionalized films, like The Laundromat, partake
in literary license, including “simulated dialogue, composite characters, and a telescoping of events
occurring over a period into a composite scene or scenes.” Davis, 654 F. Supp. at 658. The use

Page 33 of such conventions is “singularly appropriate and unexceptionable,” and if the “alterations of fact
in scenes portrayed are not made with serious doubts of truth of the essence [of the scene
portrayed], such scenes do not ground a charge of actual malice.” Id.9
Moreover, as in other factually-inspired films approved by courts in the Second Circuit,
The Laundromat repeatedly makes clear that it is a fictionalization, with the facetious statement
that it is “based on actual secrets,” or as the trailer says, “Based on Some Real Shit,” but that it is
not intended to be taken as a factual representation. (Ferber Decl., Ex. B.) Davis, 654 F. Supp. at. Such expressive works are a vital and persuasive means of entering into public discourse
about a matter of political and historical importance.10 However, modern audiences understand
the nature of such film and are well aware that what they see on the screen is not the literal truth
or a literal reenactment of events as they happened. Indeed, the Supreme Court has recognized the
different expectations of historical accuracy an audience will have when confronted with a
dramatic presentation as opposed to a news article.
See Masson, 501 U.S. at 513 (“[A]n
acknowledgement that the work is a so-called docudrama or historical fiction . . . might indicate
that the quotations should not be interpreted as the actual statements of the speaker to whom they
are attributed.”). As the California Court of Appeal recently explained in dismissing actress Olivia
De Havilland’s defamation suit against the makers of the docudrama Feud,
When the expressive work at issue is fiction, or a combination of
fact and fiction, the “actual malice” analysis takes on a further
wrinkle. De Havilland argues that, because she did not grant an
interview at the 1978 Academy Awards or make the “bitch sister”
or “Sinatra drank the alcohol” remarks to Bette Davis, Feud’s
creators acted with actual malice. But fiction is by definition untrue.
This reasoning applies with greater force to the Film, which, unlike the serious dramatic motion picture at issue in
Davis, is an obviously comedic, and at times even farcical, presentation.
See Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501 (1952) (recognizing that “[t]he importance of motion pictures
as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform.”);
Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 65 (1981) (“Entertainment, as well as political and ideological speech,
is protected; motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and
dramatic works, fall within the First Amendment guarantee.”) (citations omitted).

Page 34 It is imagined, made-up. Put more starkly, it is false. Publishing a
fictitious work about a real person cannot mean the author, by virtue
of writing the fiction, has acted with actual malice.
De Havilland v. FX Networks, LLC, 21 Cal. App. 5th 845, 869 (Cal. App. 2018), review denied,
No. S2448614, 2018 Cal. LEXIS 5034 (Cal. July 11, 2018), cert. denied, 139 S. Ct. 800 (2019)
(dismissing defamation action, awarding defendants their fees and costs). This analysis likewise
applies to Plaintiffs’ claim of libel based upon so-called innuendo and implication, which in fact,
is simply a more tenuous and less sustainable version of a libel claim. (Pl. Br. at 18.) For the
foregoing reasons, Plaintiffs are not likely to succeed on their defamation claims.
C. Plaintiffs Are Unlikely To Succeed On The Merits Of Their False Light
Privacy Claim
Under Connecticut law, 11 to establish invasion of privacy by false light, the plaintiff must
show “(a) the false light in which the other was placed would be highly offensive to a reasonable
person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the
publicized matter and the false light in which the other would be placed.” Miles v. City of Hartford, F. Supp. 2d 207, 216 (D. Conn. 2010), aff’d, 445 F. App’x 379 (2d Cir. 2011) (dismissing
false light privacy claim because plaintiff could not show the statement at issue was false)
(citations omitted). As with defamation, “the right of privacy must give way when balanced
against the publication of matters of public interest, in order to insure the uninhibited robust and
wide-open discussion of legitimate public issues.” Jensen v. Times Mirror Co., 634 F. Supp. 304, (D. Conn. 1986) (citations & quotations omitted). Thus, it is “largely the same analyses” as
was made above with respect to the defamation claim, and for the same reasons must fail. Id. at.

As explained in Defendant’s motion to dismiss or, in the alternative, to transfer venue, neither Plaintiffs nor the
making or marketing of the Film concern Connecticut, so it is unclear that Connecticut law would apply, and the
controlling law may not recognize a false light claim.

Page 35 First, Plaintiffs were already very much in the public eye, for the same reasons that they
are portrayed in the Film, prior to the release of the Film. Therefore, their allegation that Defendant
has unreasonably placed them in a false light before the public is simply untenable. Second, under
the First Amendment, “a media defendant can be liable for a false light invasion of privacy only
where it publishes highly offensive material without regard to its falsity, and to the false impression
relayed to the public.” Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 132
(1982). “As long as the matter published is substantially true, the defendant was constitutionally
protected from liability for a false light invasion of privacy . . .” Id. As explained in detail above,
Defendants’ Film is a largely comedic morality tale, not a newspaper report. Moreover, the gist
of the Film – that offshore shell corporations are abused by the powerful and wealthy, including
criminals – is substantially true, which provides a complete defense to Plaintiffs’ false light claim.
Therefore, for the reasons more fully set forth in Section II.B, Plaintiffs’ false light claim must
fail.
D. Plaintiffs’ Claims Fail Under Connecticut’s Anti-SLAPP Statute
Connecticut’s Anti-SLAPP law, Section 52-196a, permits a defendant to dismiss a lawsuit
brought against it if the suit is “‘based on the defendant’s exercise of its right to free speech,’ . . .
under the state or federal constitutions ‘in connection with a matter of public concern.’” Cronin
v. Pelletier, No. CV186014395S, 2018 WL 3965004, at *1 (Conn. Super. Ct. July 26, 2018)
(quoting statute) (dismissing plaintiff’s libel per se claim). The statute defines “right of free
speech” as “communicating, or conduct furthering communication, in a public forum on a matter
of public concern.” Conn. Gen. Stat. § 52-196a(a)(2) (West). The statute in turn defines “matter
of public concern,” in pertinent part, to include “an issue related to . . . (B) . . . economic or
community well-being, (C) the government, . . . and other regulatory matters, (D) a . . .public

Page 36 figure, or (E) an audiovisual work.” Id., § 52-196a(a)(1). Here, Defendant’s Film is an audiovisual
work disseminated publicly that concerns a matter of great public concern, namely, the U.S.
regulatory system, which permits the creation of offshore shell companies as tax havens to protect
the ultra-rich.12 Thus, Defendant has met its initial burden of showing, by a preponderance of the
evidence, that Plaintiffs’ Complaint is based on Defendant’s exercise of its right of free speech in
connection with a matter of public concern. Therefore, the court “shall grant a special motion to
dismiss” unless Plaintiffs are able to “set forth with particularity the circumstances giving rise to
the Complaint . . . and demonstrates to the court that there is probable cause, considering all valid
defenses, that the party will prevail on the merits of the complaint.” Section 52-196a(e)(3). This
it cannot do for the reasons outlined in Sections II.A-C above. See Georgetti, 2019 Conn. Super.
LEXIS 2280, at *1 (granting motion to dismiss police officer’s complaint alleging defendants
defamed him in a news report stating that he had been accused of sexual misconduct and had been
suspended without pay under Connecticut Anti-SLAPP statute, finding that plaintiff could not
prove actual malice as a matter of law).
E. Plaintiffs Are Unlikely To Succeed On The Merits Of Their Trademark
Dilution Claim. Plaintiffs Cannot Prove Their Mark Is “Famous” For Dilution Purposes
Under the Lanham Act, only famous marks are eligible for protection against dilution by
blurring or by tarnishment (Plaintiffs allege the latter).13 15 U.S.C. § 1125(c)(1). In order to be
“famous,” a mark must be “widely recognized by the general consuming public of the United

That this subject status is a matter of public concern is beyond dispute given the extensive international media
attention that followed the publication of the Panama Papers.
Plaintiffs confusingly assert that viewers will assume Plaintiffs endorse or approve of the logo’s use. (Plaintiffs’
Br. at 6.) That is not an element of a dilution claim (it is an element of an infringement claim, which Plaintiffs have
not pled). In any event, given the parodic nature of and critical commentary contained in the Film, it is inconceivable
that viewers would assume Plaintiffs approved of or endorsed the Film.

Page 37 States” as a designation indicating a single source of goods or services. Id. at § 1125(c)(2)(A)
(emphasis added). It is a difficult and demanding requirement, and one that Plaintiffs’ mark
MOSSACK FONSECA mark and logo unquestionably does not meet. See, e.g., Coach Services,
Inc. v. Triumph Learning LLC, 668 F.3d 1356 (Fed. Cir. 2012) (finding evidence did not prove
COACH was a “famous” mark for dilution purposes). A number of courts, including the Second
Circuit, have said that to qualify as “famous” for purposes of dilution, the mark must be a
“household name” – “a name immediately familiar to very nearly everyone, everywhere in the
nation.” 4 McCarthy on Trademarks and Unfair Competition, § 24:104 (5th 3d. 2019); Schutte
Bagclosures, Inc. v. Kwik Lok Corp., 193 F. Supp. 3d 245, 283 (S.D.N.Y. 2016), aff’d, 699 F.
App’x 93 (2d Cir. 2017) (“Only trademarks that enjoy such broad renown so as to at least approach
(if not attain) the status of ‘household names’ may qualify as famous marks under federal law.”).
Thus, “‘niche fame’ among a specific marketplace or group of consumers is insufficient . . .” Id.
(citation omitted).
Here, Plaintiffs have at best alleged only niche fame, claiming that its “logos were widely
recognized by consumers in Plaintiffs’ industry and became famous well prior to Netflix’s
unlawful use of the logo.” (Compl., ¶ 131 (emphasis added).) Thus, by Plaintiffs’ own admission,
their mark and logo is not sufficiently famous to merit protection under Section 43(c) of the
Lanham Act.
Plaintiffs assert in their Brief that because Colombia, where the MOSSACK FONSECA
mark is registered, is a member of the international treaty, the General Inter-American Convention
for Trade Mark and Commercial Protection, it is not required to prove fame in order to bring a
dilution claim. However, they cite no provision of the treaty in support of this remarkable claim,
nor do they cite a single case. Therefore, this argument is unsupportable.

Page 38 2. Plaintiffs’ Dilution Claim Fails Because Plaintiffs’ Mark Is Already
Tarnished
In addition to its lack of fame, as admitted throughout the Complaint, Plaintiffs’ logo and
the goodwill that it represents have already been so thoroughly tarnished that its portrayal in The
Laundromat – in connection with the same subject matter that has already made headlines
throughout the United States – cannot possibly sustain a cause of action for tarnishment. For
instance, as the Complaint acknowledges, “[i]mmediately after initial news reports of hack
revelations, and the rumors concerning [Plaintiffs’] alleged clients, banks and other third parties
refused to do business with [Plaintiffs’ firms].” (Id., ¶ 38.) As a consequence of the “severe[]
damage[]” caused to Plaintiffs’ firms’ reputation (id., ¶ 37), it ultimately was forced to close its
offices and lost its entire client base. (Id., ¶ 40.) As Plaintiffs admit, they have already “suffered
damage to the goodwill and value their business as a result of the “hack and release” of the Panama
Papers. (Id., ¶ 43.). Defendants’ Work Falls Within The Noncommercial Use Exception To
The Dilution Statute
Finally, as an artistic work, The Laundromat falls within the “noncommercial use” liability
exemption to dilution protection under Section 43(c) of the Lanham Act because it presents a
farcical view of the conduct exposed in the “Panama Papers,” intended to provide a critical
commentary on the use of offshore companies to provide tax shelters for the wealthy. Smith v.
Wal-Mart Stores, Inc., 537 F. Supp. 2d 1302 (N.D. Ga. 2008) (citing Mattel v. Walking Mountain
Prods, 353 F.3d 792, 812 (9th Cir. 2003) (“[T]arnishment caused by an . . . artistic parody which
satirizes [the complainant’s] . . . image is not actionable under an anti-dilution statute because of
the free speech protections of the First Amendment.”)).

Page 39 F. Plaintiffs Are Unlikely To Succeed On The Merits Of Their Trademark
Claims Under the Rogers Rule
Artistic expression, such as Defendant’s film, is constitutionally protected speech. The
application of the First Amendment’s protections to motion pictures and other works of
entertainment has been established since the Supreme Court’s decision in Joseph Burstyn, Inc. v.
Wilson, 343 U.S. 495 (1952), in which the Court recognized that “[t]he importance of motion
pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain
as well as to inform.” Id. at 501; see also Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 65
(1981) (“Entertainment, as well as political and ideological speech, is protected; motion pictures,
programs broadcast by radio and television, and live entertainment, such as musical and dramatic
works, fall within the First Amendment guarantee.”) (citations omitted).
The conflict between Lanham Act claims and First Amendment protection for artistic
works was addressed in the seminal case of Rogers v. Grimaldi, 695 F. Supp. 112 (S.D.N.Y. 1988),
aff’d, 875 F.2d 994 (2d Cir. 1989), which held that the First Amendment precludes Lanham Act
claims premised upon the title of an expressive work unless the title “has no artistic relevance to
the underlying work whatsoever, or, if it has some artistic relevance, unless [it] explicitly misleads
as to the source or the content of the work.” Id. at 999 (emphasis added). The Rogers test has
been widely adopted and extended to use of both names and trademarks in the content of expressive
works, as well as their titles, leading to such claims regularly being dismissed as a matter of law.
See, e.g., Louis Vuitton Mallatier S.A. v. Warner Bros. Entm’t Inc., 868 F. Supp. 2d 172, 177 n.9
(S.D.N.Y. 2012) (use of trademark in context of film); Mattel, Inc. v. MCA Records, 296 F.3d 894, (9th Cir. 2002) (use of trademark in title and content of song); ETW Corp. v. Jireh Publ’g,
Inc., 332 F.3d 915, 928 (6th Cir. 2003) (use of name and trademark in marketing materials for

Page 40 prints of painting); Sugar Busters LLC v. Brennan, 177 F.3d 258, 269 n.7 (5th Cir. 1999) (use of
trademark in book title).
Courts have found that the threshold for finding that the trademark at issue has artistic
relevance to the underlying work is “appropriately low.” Rogers, 875 F.2d at 999; see Louis
Vuitton, 868 F. Supp. 2d at 178 (“The threshold for artistic relevance is purposely low and will be
satisfied unless the use has no artistic relevance to the underlying work whatsoever”) (citations &
quotations omitted) (emphasis in the original); E.S.S. Entm’t 2000, Inc. v. Rock Star Videos, Inc., F.3d 1095, 1100 (9th Cir. 2008) (finding that “the level of relevance merely must be above
zero” to “merit First Amendment protection”).
Here, Defendant more than meets that “appropriately low” threshold. The Laundromat
employs the names of Plaintiffs, along with the names of their law firms, and the logo of
MOSSACK FONSECA, all in the course of telling the fictionalized story of how these two lawyers
found and exploited loopholes to help wealthy individuals and companies avoid taxation and other
liabilities, largely through the creation of shell companies located offshore. Because these men,
their companies, identified by the MOSSACK FONSECA logo, all feature in the real life events
on which the Film is based, their use is artistically relevant to the work. See E.S.S. Entertainment Inc., 547 F.3d at 1095, 1098, 1100 (finding that video game creator’s use of “Pig Pen,” a
virtual, cartoon-style strip club similar in look at feel to trademark owner’s Los Angeles strip club,
was protected by the First Amendment from trademark and trade dress infringement claims; the
court found artistic relevance because the creator sought to create a “cartoon-style parody of East
Los Angeles,” and “a reasonable way to do that is to recreate a critical mass of the businesses and
buildings that constitute it”); Dillinger, LLC v. Electronic Arts, Inc., No. 1:09-cv-1236-JMS-DKL, U.S. Dist. LEXIS 64006, at *14 (S.D. Ind. June 16, 2011) (finding the name “Dillinger” in

Page 41 reference to a Tommy Gun was artistically relevant to the defendants’ The Godfather video game
because “the gentleman-bandit, commonly known for his public persona as a flashy gangster who
dressed well, womanized, drove around in fast cars, and sprayed Tommy Guns, has above-zero
relevance to a game whose premise enables players to act like members of the mafia and spray
Tommy Guns.”) (citation & quotations omitted). Thus, Plaintiffs’ Lanham Act claims will fail.
III.
THE BALANCE OF EQUITIES AND PUBLIC INTEREST TIP DECIDELY IN
DEFENDANT’S FAVOR
As noted above, Plaintiff points only to harm that has already occurred or speculative and
conclusory assertions of potential harm should the Court deny its motion. As demonstrated in the
accompanying Declaration of Christian Davin, defendant Netflix’s Marketing Vice President for
Films, however, the harm to Netflix should an injunction be granted is both guaranteed and
substantial. An injunction to prematurely halt the completion of the theatrical distribution of
Laundromat would result in substantial lost revenue from ticket sales, lost investment in
advertising and promotion of the Film, and lost investment in securing theater space. (Davin Decl.,
¶ 5-7.) It would also prevent the imminent distribution of the Film on Netflix, which has been
advertised for more than six weeks, resulting in harm to the company’s relationship with its
subscribers, many of whom eagerly anticipate the Film’s streaming release. (Id., ¶ 7.)
Furthermore, Defendant could not realize the same revenues from these forms of
distribution in a subsequent year, because the advertising and promotion which was done for the
Film in connection with its Fall release will have all but disappeared from the public consciousness
by then. (Id., ¶ 7.) Thus, weighing the speculative or non-unique harm to the Plaintiffs against
the “significant but unmeasurable economic injury” to Netflix, the balance of hardships decidedly
favors Defendant. Marcy, 6 F. Supp. 2d at 283; see J.R. O’Dwyer Co. v. Media Mktg. Int’l, Inc., F. Supp. 599, 606-07 (S.D.N.Y. 1991) (balance of hardships in favor of defendants, where

Page 42 plaintiff offered only “conclusory assertion” of damage to revenues or reputation, and where
defendants’ allegedly infringing public relations directory had already had substantial distribution,
so that “the vast majority of whatever harm its publication [would] visit on [plaintiff] has occurred
already”); see also Twentieth Century Fox Film Corp. v. Marvel Enters., Inc., 277 F.3d 253, 258
(2d Cir. 2002) (holding that “the equities weigh against halting a TV series now being aired
because of alleged injury to a film sequel that is, at best, in the planning stage”).
Likewise, the public interest weighs in favor of Defendant and against enjoining The
Laundromat. As explained above, Plaintiffs’ claim of damage either have already occurred, such
that an injunction would not spare them harm, or they are remote and speculative. In contrast, an
injunction would impair Defendant’s First Amendment rights and impede public discourse on a
matter of great public concern, namely systemic corruption and global inequality. See Salinger v.
Colting, 607 F.3d 68, 82 (2d Cir. 2010) (“The public’s interest in free expression . . . is significant
and is distinct from the parties’ speech interests. By protecting those who wish to enter the
marketplace of ideas . . . , the First Amendment protects the public’s interest in receiving
information. Every injunction issued before a final adjudication on the merits risks enjoining
speech protected by the First Amendment.”) (citations & quotations omitted).
IV.
PLAINTIFF’S BOND WOULD HAVE TO BE AT LEAST $1 MILLION
Rule 65(c) requires the posting of a proper bond by Plaintiff “for the payment of such costs
and damages as may be incurred or suffered by any party who is found to have been wrongfully
enjoined or restrained.” See, e.g., Nintendo of Am., Inc. v. Lewis Galoob Toys, Inc.¸16 F.3d 1032,-39 (9th Cir. 1994) (holding that defendant who was wrongfully enjoined was entitled to
recover full amount of $15 million bond). The failure to require a bond is reversible error. Hoechst
Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411, 421 (4th Cir. 1999). While Defendants submit

Page 43 that Plaintiff’s motion is marked by a singular failure to satisfy the requirements for preliminary
injunctive relief, should the Court grant the motion, a bond in the amount of at least $1 million
should be required, in accordance with the facts set forth in the accompanying Davin Declaration.
CONCLUSION
For the foregoing reasons, Defendant Netflix, Inc. respectfully submits that the Court
should deny Plaintiff’s motion for a temporary restraining order and preliminary injunction in all
respects.
Dated: New York, New York
October 17, 2019
COWDERY & MURPHY, LLC
By: __//s// James J. Healy_________________
James J. Healy Trumbull Street, 22nd Floor
Hartford, Connecticut 06103
(860) 278-5555
PRYOR CASHMAN LLP
Tom J. Ferber
Ilene Farkas
Felicity Kohn
Michael Adelman Times Square
New York, New York 10036
(212) 421-4100
Attorneys for Defendant Netflix Inc.

Page 44 CERTIFICATION
I hereby certify a copy of the foregoing was filed electronically on October 17, 2019. Notice
of this filing will be sent by email to all parties by operation of the Court’s electronic filing system
or by mail to anyone unable to accept electronic filing. Parties may access this filing through the
Court’s system.
By: //s// James J. Healy (ct28447)
James J. Healy

PDF Page 1	PlainSite Cover Page

PDF Page 2	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 1 of 44 UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT ____________________________________ : MOSSACK FONSECA & CO., S.A., : BUFETE MF & CO., JURGEN : MOSSACK and RAMON FONSECA : : Plaintiffs, : CIVIL ACTION NO. 3:19-cv-01618 : v. : : NETFLIX INC. : October 17, 2019 : Defendant. : ____________________________________: DEFENDANT NETFLIX, INC.’S MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

PDF Page 3	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 2 of 44 TABLE OF CONTENTS TABLE OF AUTHORITIES ..................................................................................................... iii PRELIMINARY STATEMENT ................................................................................................. 1 FACTUAL BACKGROUND ...................................................................................................... 4 The Panama Papers Scandal .................................................................................................. 4 The Laundromat .................................................................................................................... 5 The Complaint....................................................................................................................... 8 ARGUMENT .............................................................................................................................. 9 I. PLAINTIFFS HAVE FAILED TO DEMONSTRATE IRREPARABLE HARM ........... 10 II. PLAINTIFF IS NOT LIKELY TO SUCCEED ON THE MERITS OF ITS CLAIMS .... 17 A. Plaintiffs’ Requested Preliminary Injunction Is An Unconstitutional Prior Restraint ................................................................................................................. 17 B. Plaintiffs Are Unlikely To Succeed On The Merits Of Their Defamation Claims .................................................................................................................... 20 1. The Film Is Not A False Publication Of Fact Concerning Plaintiffs................ 20 2. The Injury to Plaintiffs’ Reputation Has Already Occurred ............................ 21 3. Plaintiffs Are Public Figures But Cannot Prove Actual Malice ....................... 21 a. Plaintiffs Are Public Figures ...................................................................... 22 b. Plaintiffs Have Not Sufficiently Alleged And Cannot Prove Actual Malice ....................................................................................................... 23 C. Plaintiffs Are Unlikely To Succeed On The Merits Of Their False Light Privacy Claim......................................................................................................... 26 D. Plaintiffs’ Claims Fail Under Connecticut’s Anti-SLAPP Statute ........................... 27 E. Plaintiffs Are Unlikely To Succeed On The Merits Of Their Trademark Dilution Claim........................................................................................................ 28 1. Plaintiffs Cannot Prove Their Mark Is “Famous” For Dilution Purposes ........ 28 i

PDF Page 4	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 3 of 44 TABLE OF CONTENTS, continued F. 2. Plaintiffs’ Dilution Claim Fails Because Plaintiffs’ Mark Is Already Tarnished ....................................................................................................... 30 3. Defendant’s Work Falls Within The Noncommercial Use Exception To The Dilution Statute....................................................................................... 30 Plaintiffs Are Unlikely To Succeed On The Merits Of Their Trademark Claims Under the Rogers Rule ............................................................................... 31 III. THE BALANCE OF EQUITIES AND PUBLIC INTEREST TIP DECIDELY IN DEFENDANT’S FAVOR ............................................................................................. 33 IV. PLAINTIFF’S BOND WOULD HAVE TO BE AT LEAST $1 MILLION ................... 34 CONCLUSION ......................................................................................................................... 35 ii

PDF Page 5	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 4 of 44 TABLE OF AUTHORITIES CASES PAGE(s) American Malting Co. v. Keitel, 209 F. 351 (2d Cir. 1913) .....................................................................................................17 Bingham v. Straude, 184 A.D.2d 85 (1st Dep’t 1992) ........................................................................................... 18 Biro v. Conde Nast, 963 F. Supp. 2d 255 (S.D.N.Y. 2013), aff’d, 877 F.3d 541 (2d Cir. 2015), aff’d, 622 F. App’x 67 (2d Cir. 2015) .............................................................................................. 23, 24 Brooks v. Consensus Strategies, LLC, No. 3:07-cv-0560(PCD), 2007 WL 9754573 (D. Conn. June 18, 2007) ................................ 10 Cardillo v. Doubleday & Co., 518 F.2d 638 (2d Cir. 1975) ................................................................................................. 21 Chau v. Lewis, 771 F.3d 118 (2d Cir. 2014) ................................................................................................. 20 Citibank, N.A. v. Citytrust, 756 F.2d 273 (2d Cir. 1985) ................................................................................................. 15 Coach Services, Inc. v. Triumph Learning LLC, 668 F.3d 1356 (Fed. Cir. 2012)............................................................................................. 29 Cronin v. Pelletier, No. CV186014395S, 2018 WL 3965004 (Conn. Super. Ct. July 26, 2018) ...........................27 Dameron v. Washington Magazine, Inc., 779 F.2d 736 (D.C. Cir. 1985) .............................................................................................. 22 Davis v. Costa-Gavras, 654 F. Supp. 653 (S.D.N.Y. 1987) ............................................................................ 12, 24, 25 De Havilland v. FX Networks, LLC, 21 Cal. App. 5th 845, 869 (Cal. App. 2018), review denied, No. S2448614, 2018 Cal. LEXIS 5034 (Cal. July 11, 2018), cert. denied, 139 S. Ct. 800 (2019) ................................... 26 Dillinger, LLC v. Electronic Arts, Inc., No. 1:09-cv-1236-JMS-DKL, 2011 U.S. Dist. LEXIS 64006 (S.D. Ind. June 16, 2011) ...................................................................................................... 32 iii

PDF Page 6	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 5 of 44 CASES PAGE(s) E.S.S. Entm’t 2000, Inc. v. Rock Star Videos, Inc., 547 F.3d 1095 (9th Cir. 2008) .............................................................................................. 32 ETW Corp. v. Jireh Publ’g, Inc., 332 F.3d 915 (6th Cir. 2003) ................................................................................................ 31 Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110 (2d Cir. 2009) ................................................................................................. 10 Fuller v. Day Pub. Co., No. 030565104, 2004 WL 424505 (Conn. Super. Ct. Feb. 23, 2004), aff’d, 872 A.2d 925 (Conn. App. Ct. 2005) .............................................................................................. 22, 23 Georgetti v. Nexstar Media Grp., Inc., No. NNHCV186087491S, 2019 Conn. Super. LEXIS 2280 (Conn. Super. Ct. Aug. 15, 2019) ......................................................................................................................... 21, 28 Gifford v. Taunton Press, Inc., No. DBSCV186028897S, 2019 WL 3526461 (Conn. Super. Ct. July 11, 2019) .............. 20, 24 Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107 (1982)........................................................................................................... 27 Grand River Enterprise Six Nations, Ltd. v. Pryor, 481 F.3d 60 (2d Cir. 2007) ................................................................................................... 10 Guccione v. Hustler Magazine, Inc., 800 F.2d 298 (2d Cir. 1986) ................................................................................................. 11 Heublein v. F.T.C., 539 F. Supp. 123 (D. Conn. 1982) ........................................................................................ 16 Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411 (4th Cir. 1999) ................................................................................................ 34 Hunt v. National Broadcasting Co., 872 F.2d 289 (9th Cir. 1989) ........................................................................................... 14, 19 Jensen v. Times Mirror Co., 634 F. Supp. 304 (D. Conn. 1986) ........................................................................................ 26 Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952) ................................................................................................... 1, 25, 31 iv

PDF Page 7	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 6 of 44 CASES PAGE(s) J.R. O’Dwyer Co. v. Media Mktg. Int’l, Inc., 755 F. Supp. 599 (S.D.N.Y. 1991) ........................................................................................ 33 Louis Vuitton Mallatier S.A. v. Warner Bros. Entm’t Inc., 868 F. Supp. 2d 172 (S.D.N.Y. 2012) ............................................................................. 31, 32 Marcy Playground, Inc. v. Capitol Records, 6 F. Supp. 2d 277 (S.D.N.Y. 1998) ........................................................................... 10, 12, 33 Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991) ....................................................................................................... 12, 25 Mattel v. Walking Mountain Prods, 353 F.3d 792 (9th Cir. 2003) ................................................................................................ 30 Mattel, Inc. v. MCA Records, 296 F.3d 894 (9th Cir. 2002) ................................................................................................ 31 Meeropol v. Nizer, 560 F.2d 1061 (2d Cir. 1977), cert. denied, 434 U.S. 1013 (1978) ........................................ 22 Metropolitan Opera Ass’n, Inc. v. Local 100, Hotel Employees & Rest. Employees Int’l. Union, 239 F.3d 172 (2d Cir. 2001) ........................................................................................... 17, 18 Miles v. City of Hartford, 719 F. Supp. 2d 207, 216 (D. Conn. 2010), aff’d, 445 F. App’x 379 (2d Cir. 2011) .............. 26 Miller v. Miller, No. 3:18-cv-01067(JCH), 2018 WL 3574867 (D. Conn. July 25, 2018) ................ 9, 10, 17, 18 Mitchell v. Cuomo, 748 F.2d 804 (2d Cir. 1984) ................................................................................................. 16 Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 22 F.3d 546 (4th Cir. 1994) .................................................................................................. 16 Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976) ............................................................................................................. 19 Nintendo of Am., Inc. v. Lewis Galoob Toys, Inc.¸ 16 F.3d 1032 (9th Cir. 1994) ................................................................................................. 34 v

PDF Page 8	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 7 of 44 CASES PAGE(s) Planned Parenthood of Minnesota, Inc. v. Citizens for Community Action, 558 F.2d 861 (8th Cir. 1977) ................................................................................................ 16 Rogers v. Grimaldi, 695 F. Supp. 112 (S.D.N.Y. 1988), aff’d, 875 F.2d 994 (2d Cir. 1989) ........................... 31, 32 Roy Exp. Co. Establishment v. Trustees of Columbia Univ., 344 F. Supp. 1350 (S.D.N.Y. 1972) ...................................................................................... 14 Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010) ................................................................................................... 34 Schad v. Borough of Mt. Ephraim, 452 U.S. 61 (1981) ......................................................................................................... 25, 31 Schutte Bagclosures, Inc. v. Kwik Lok Corp., 193 F. Supp. 3d 245, 283 (S.D.N.Y. 2016), aff’d, 699 F. App’x 93 (2d Cir. 2017) ................ 29 Smith v. Wal-Mart Stores, Inc., 537 F. Supp. 2d 1302 (N.D. Ga. 2008) ................................................................................. 30 Sugar Busters LLC v. Brennan, 177 F.3d 258 (5th Cir. 1999) ................................................................................................ 32 Tom Doherty Assocs. v. Saban Entm’t, Inc., 60 F.3d 27 (2d Cir. 1995) .....................................................................................................15 Twentieth Century Fox Film Corp. v. Marvel Enters., Inc., 277 F.3d 253 (2d Cir. 2002) ................................................................................................. 34 United States v. Quattrone, 402 F.3d 304 (2d Cir. 2005) ................................................................................................. 18 Wolston v. Reader’s Digest Ass’n, Inc., 443 U.S. 157 (1979) ............................................................................................................. 23 Zupnik v. Associated Press, Inc., 31 F. Supp. 2d 70 (D. Conn. 1998) .......................................................................... 20, 21, 22 vi

PDF Page 9	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 8 of 44 STATUTES PAGE(s) Conn. Gen. Stat. § 52-196a(a)(1) ............................................................................................... 28 Conn. Gen. Stat. § 52-196a(a)(2) ............................................................................................... 27 Conn. Gen. Stat. § 52-196a(e)(3) ............................................................................................... 28 15 U.S.C. § 1125(c)(1) .............................................................................................................. 28 15 U.S.C. § 1125(c)(2)(A)......................................................................................................... 29 TREATISE 4 McCarthy on Trademarks and Unfair Competition, § 24:104 (5th 3d. 2019) .......................... 29 vii

PDF Page 10	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 9 of 44 Defendant Netflix, Inc. (“Netflix” or “Defendant”) respectfully submits this memorandum of law in opposition to Plaintiffs’ motion for a temporary restraining order and preliminary injunction against the distribution of Defendant’s film (“Plaintiffs’ Motion”). PRELIMINARY STATEMENT Plaintiffs’ Motion should be denied for a host of reasons. First, Plaintiffs are seeking an eleventh hour gag order against constitutionally protected speech, mere days before the motion picture at issue herein is to be released on Netflix. As the U.S. Supreme Court long ago recognized: “The importance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform.” Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501 (1952). As is explained in detail below, Defendant’s film, while entertaining and largely comedic, is intended to bring attention to the abuse of offshore shell corporations and tax shelters, and it is an indictment of the legal system that permits them. Plaintiffs’ Motion, which seeks a virtually unheard of prior restraint on speech, is thus an affront to established First Amendment principles. Second, Plaintiffs have utterly failed to demonstrate the irreparable harm that is an essential prerequisite to the emergency relief they seek. Indeed, Plaintiffs’ delay in filing their motion compels the conclusion that there is no urgency or irreparable harm. Moreover, Plaintiffs admit that the reputational harm that they claim they might suffer has long since occurred as a result of the news media frenzy engendered by the 2016 publication of the Panama Papers. Third, Plaintiffs have not demonstrated a likelihood of success on the merits, nor can they pass the constitutional requirement of showing actual malice on Netflix’s part. And Plaintiffs’ Lanham Act claims fail as a matter of law. Their claim of dilution by “tarnishment” of their logo – the use of which in the film is also protected under established First Amendment jurisprudence – is laughable, given that the Complaint acknowledges that their reputations have 1

PDF Page 11	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 10 of 44 already been so blackened as a result of the spotlight that the international press has been shining on Plaintiffs for the last three and a half years – the result of which was the loss of all of their clients, banks refusing to do business with them and the shuttering of their business. The film at issue – The Laundromat (the “Film”) – was inspired by the notorious Panama Papers, the 11.5 million documents that were hacked from Plaintiffs’ law firm by an anonymous whistleblower, the 2016 release of which revealed over 200,000 offshore shell corporations and bank accounts set up by Plaintiffs that had been abused by the elite and powerful to protect their interests from exposure to tax, legal and other liabilities. The Panama Papers received worldwide media attention, due in substantial part to the revelations of shell corporations and tax shelters used by innumerable world leaders and celebrities, and their disclosure has played an important role in criminal prosecutions. By November 2016, Europol reported that it had found 3,469 probable matches to criminal and terrorist organizations when they compared the Panama Papers to their own files. Similarly, the Panama Papers provide an evergreen resource for journalists to cross-check as stories develop involving allegedly corrupt actors and politicians, including those currently occupying headlines in the U.S. (See Declaration of Tom J. Ferber, dated October 16, 2019 (“Ferber Decl.”), Ex. G.) The Film, which The New York Times described as “a didactic comedy, an earnest lesson in political economy dressed up as a farce” (https://www.nytimes.com/2019/09/25/movies/the-laundromatreview.html?searchResultPosition=1), is a moral indictment of the “massive and pervasive corruption of the legal system” and the elites who have no incentive to stop tax evasion, including in the United States, as is stated in a central character’s closing monologue that breaks the “fourth wall” to sound an alarm directly to the audience. 2

PDF Page 12	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 11 of 44 Plaintiffs, attorneys who were licensed in Panama and their affiliated entities, “were primarily engaged in the business of forming and maintaining offshore companies … for clients.” (Compl. ¶¶ 1-3, 6.) While implying that most of the entities they set up were legitimate, Plaintiffs acknowledge that a portion of the offshore corporations which they created for their clients were subsequently utilized for criminal activity, including money laundering, tax evasion, bribery and/or fraud. (Compl. ¶ 32.) Plaintiffs’ Complaint is replete with allegations about the extensive damage done to Plaintiffs’ business and reputations as a result of the massive international media coverage of the Panama Papers, which “led to closure of [their] offices and ultimately the loss of [their] entire client base” as well as two criminal prosecutions in Panama and an anticipated one in the United States. (Compl. ¶¶ 34 – 42, 124.) Plaintiffs have inexplicably delayed in seeking the extraordinary relief of a temporary restraining order, waiting until the end of the day on October 15, 2019 to file their application. News that Netflix had “committed to finance and release” the Film, as well as the disclosure of its a-list cast and director, first made headlines over a year ago. (Ferber Decl., Ex. H.) Advertising for the Film began on or about August 28, 2019. (Declaration of Christian Davin, dated October 16, 2019 (“Davin Decl.”), ¶ 4.) Plaintiffs claim to have been aware of the full Film’s content as of September 10, 2019. (Aff. of Arthur Ventura, Jr. at ¶ 20.) Yet Plaintiffs did not even give Netflix notice of their purported grievance until late in the day on Friday, October 11, 2019, when they sent a draft of the Complaint – a draft which was dated October 4, 2019. (Declaration of Kate Chilton, dated October 16, 2019 (“Chilton Decl.”, ¶ 2.) The supporting affidavit of Arthur Ventura, Jr. was sworn to on the same date. (See Ventura Aff. at p. 14.) Thus, Plaintiffs have admittedly known all about the Film since at least September 10, and had a Complaint and other papers drafted nearly two weeks ago, but they waited until two and a half 3

PDF Page 13	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 12 of 44 days before the Film’s release on Netflix’s streaming platform (and after it was theatrically released) to file their motion. Plaintiffs should not be allowed to benefit from a purported emergency of their own making; if anything, they should be penalized for their delay, which eviscerates their assertions of irreparable harm. FACTUAL BACKGROUND The Panama Papers Scandal In April 2016, newspapers and media outlets around the world began publishing reports regarding the methods used by wealthy and powerful people to hide income and avoid taxes through the use of offshore bank accounts and shell companies. (Compl. ¶¶ 33-36). The primary source for these bombshell reports was a cache of 11.5 million Mossack Fonseca & Co., S.A. (the “Mossack & Fonseca Firm”) documents an anonymous whistleblower had provided to journalist Bastian Obermayer of the German newspaper Suddeutsche Zeitung. (Compl. ¶ 28). Obermayer enlisted the International Consortium of Investigative Journalists to review the massive corpus of documents for approximately one year before publishing any reports regarding their contents. (Compl. ¶¶ 30-31). These documents, dubbed the Panama Papers, referenced over 200,000 offshore entities created by the Mossack & Fonseca Firm, including many used for the benefit of rich and famous people in both public and private sectors around the world. (Compl. ¶ 29). The reporting on the Panama Papers and the Mossack & Fonseca Firm’s role in facilitating tax avoidance and offshore banking for the wealthy precipitated numerous governmental investigations and prosecutions, including two legal proceedings brought by Panamanian authorities against Jurgen Mossack (“Mossack”) and Ramon Fonseca (“Fonseca”). (Compl. ¶ 41). Since the release of the Panama Papers, Mossack and Fonseca have not hidden from the international controversy. To the contrary, as Plaintiffs admit, Mossack and Fonseca spoke with 4

PDF Page 14	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 13 of 44 investigative journalist Jake Bernstein. (Compl. ¶ 53). In addition, Mossack gave interviews to CNBC and The Wall Street Journal in April 2016, and Fonseca gave an interview to reporters, excerpts of which were subsequently published in a Reuters article and an AP Article in February 2017. (Declaration of Tom J. Ferber, dated October 16, 2019 (“Ferber Decl.”), ¶ 6 & Exs. D-F). As a result of the ongoing criminal investigations and prosecutions, Mossack and Fonseca have been subject to arrest and bail conditions that confine them to Panama. (Compl. at p.5, ¶ 42). In the immediate aftermath of the reporting on the Panama Papers (i.e., well before the production or release of The Laundromat), banks refused to do business with Plaintiffs, clients ceased to do business with Plaintiffs, and Plaintiffs’ law firm closed. (Compl. ¶¶ 38-40). In or about November 2017, journalist Jake Bernstein released a “thoroughly researched” book regarding the previously unknown financial dealings of wealthy individuals and institutions that made use of the offshore banking and financial systems, entitled Secrecy World: Inside the Panama Papers Investigation of Illicit Money Networks and the Global Elite (the “Book”). (Compl. ¶¶ 46-58). Bernstein used the Panama Papers documents provided by the whistleblower, as well as interviews with Mossack and Fonseca, as source material for the Book. (Compl. ¶¶ 4658). The Laundromat Sometime following the publication of the Book, Netflix agreed to distribute a film about the Panama Papers that used the Book as inspiration. (Compl. ¶¶ 60-61). The resulting feature film is entitled The Laundromat (the “Film”). (Compl. ¶¶ 80-84). The Film stars the actors Meryl Streep, Gary Oldman, and Antonio Banderas and was directed by Steven Soderbergh. (Compl. ¶¶ 80-84). The Film does not purport to be a factual documentary or non-fiction adaptation of the Book. To the contrary, as Plaintiffs acknowledge, the Book is now marketed as the “Inspiration 5

PDF Page 15	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 14 of 44 for the Major Motion Picture.” (Compl. ¶ 67, emphasis added). As indicated in the Film’s promotional trailer – which is obviously not a pure dramatic presentation of actual facts, but rather a comedic morality tale about a system which invites and protects abuse – the Film is advertised as “Based on Some Real Shit,” (see Compl. ¶ 78 at 0:23), not as a non-fiction documentary. The full feature version of the Film opens with a title card facetiously stating that the Film is “Based On Actual Secrets.” (Ferber Aff., Ex. B (emphasis added)). The Film ends with a disclaimer at the 1 hour, 34 minute, 25 second mark stating “While the motion picture is inspired by actual events and persons, certain characters, incidents, locations, dialogue, and names are fictionalized for the purpose of dramatization. As to any such fictionalization, any similarity to the name or to the actual character or history of any person, living or dead, or actual incident is entirely for dramatic purposes and not intended to reflect on any actual character or history.” (Ferber Aff., Ex. C). Moreover, while the Film has characters bearing Mossack and Fonseca’s names, they are cartoonish narrators who set up shell corporations around the world; it does not depict them as direct participants in criminal activity. Rather, the Film saves its pointed critiques for the opacity of the global banking system and the systemic corruption of wealthy individuals that permit that system to perpetuate itself. These palpably farcical characters open the Film with an explanation about the genesis of money and credit with comedic dialogue about the impracticality of bartering bananas (which “turn brown over time”) and cows (which “can wander away”). “Credit,” they explain, stands in for the “tangible” cow, and because of credit, “even if you didn’t have all the bananas you need … you could borrow bananas from the future.” Noting that the world of finance has since “gotten a little more complicated” and involves trading things that are “very different from cows,” they then 6

PDF Page 16	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 15 of 44 introduce the vignettes that follow as stories “that are not about us; they are more about you.” These narrators remain farcical characters. As they describe their business, they state that they don’t even know who all of their clients are. Later in the Film, after the vignettes of cheating and other illicit activity by other characters, these characters exclaim that the idea for the system of shell corporations and tax shelters that has been depicted came from the United States – “where most ideas about money come from.” They explain that it started with Delaware’s “corporate-friendly tax laws.” They continue: “The director of this movie has five [Delaware corporations]. Even our writer has one.” And it’s legal – it’s called “tax avoidance.” The Film depicts the April 2016 hacking of the Panama Papers by “John Doe,” and their subsequent worldwide publication. Plaintiffs’ tax shelter and shell corporation mill is exposed. President Obama is seen saying that the problem is that a lot of this is legal. The narrators (i.e., Mossack and Fonseca) explain that they “didn’t write the laws; [they] just wrote contracts!” They are ruined by the ensuing scandal, close their businesses, and are arrested because some of the shell entities they formed have been connected to suspected criminals. Sitting in jail (or what is revealed to be dramatic/comedic jail scenery), Mossack complains: “You want to go back to bananas?!” The Film ends with words from “John Doe’s” so-called “manifesto,” calling on governments around the world to end the pervasive corruption described in the Film. Netflix began advertising the Film via print advertisements and trailers on August 28, 2019. (Davin Decl. ¶ 4). The Film was first screened on September 1, 2019 at the Venice Film Festival. (Davin Decl. ¶ 2). The Film was subsequently exhibited on September 9, 2019 at the Toronto Film Festival, and then was released in select theaters in New York and Los Angeles on September 27, 2019. (Davin Decl. ¶ 2). The Film is scheduled to become available to Netflix’s subscribers via its streaming service on October 18, 2019. (Davin Decl. ¶ 3). 7

PDF Page 17	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 16 of 44 The Complaint In a six page “preliminary statement” of unnumbered paragraphs, the Complaint alleges, inter alia, that the Film’s trailer (and therefore the Film) shows the “‘download’ of hacked ‘Panama papers’ in progress.” (Compl. at p.3). The Complaint acknowledges that “the movie has been released into limited public engagements” and that its “expected release date to a general public audience in theaters was September 27, 2019.” (Id. at p.5). The Complaint alleges that “the anticipated release dates correspond with times during which the Plaintiffs will be defending criminal charges against them in Panama,” and speculates that the Film “will likely precipitate Panamanian prosecutors to investigate any accusation or criminal implications revealed therein.” It also alleges that “the two current prosecutions have resulted in ‘country arrest’ and bail, and both cases were precipitated by media accounts of Panama Papers allegations.” (Id.) It further alleges that Mossack and Fonseca “are the subjects of an FBI investigation in the Southern District of New York that could result in a Trial [sic] in the United States” and complains that the Film “poses an immediate threat and harm to the Plaintiffs’ fair Trial [sic] rights.” (Id. at 6). The Complaint subsequently makes the following allegations in numbered paragraphs: Mossack and Fonseca “were licensed attorneys … residing in the Republic of Panama.” (Id. ¶ 1). Plaintiffs “were primarily engaged in the business of forming and maintaining offshore companies … for clients ….” (Id. ¶ 6). Plaintiff’s “products” were sold in Panama and other countries commonly referred to as “tax havens.” (Id. ¶ 7). The hacked Panama Papers referenced over 200,000 entities created by Plaintiffs. (Id. ¶¶ 28-29). A so-called “minute percentage” of the over 200,000 offshore corporations that Plaintiffs created for their clients were subsequently utilized for criminal activity including money laundering, tax evasion, bribery and/or fraud. (Id. ¶ 32). As a result of the revelations from the “hack and release” of the Panama Papers, Plaintiffs 8

PDF Page 18	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 17 of 44 were rumored to have dealt with and/or advised various heads of state and other persons “on the subject matter of tax avoidance, tax evasion, money laundering, fraud and/or other crimes.” Further, Plaintiffs were rumored to have dealt with and/or advised “notorious drug cartel and/or other organized crime leaders” on such subjects. (Id. ¶¶ 34-35). The press and media generated by the Panama Papers hack damaged Plaintiffs’ “client relations and ongoing business prospects.“ (Id. ¶ 37). As a result of news reports of the Panama Papers’ revelations, and rumors about Plaintiffs’ alleged clients, resulted in “banks and other third parties refus[ing] to do business” with Plaintiffs.” (Id. ¶ 38). “Plaintiffs all faced bank account closures and to date, all [Plaintiffs] remain unable to bank anywhere in the world.“ (Id. ¶ 39). Plaintiffs’ “inability to bank led to closure of its offices and ultimately the loss of its entire client base.” (Id. ¶ 40). “As a result of the ‘hack and release’ investigations the Plaintiffs . . . have suffered damage to the goodwill and value of their businesses.“ (Id. ¶ 43). Plaintiffs complain about their allege portrayal in the Film’s trailer (id. ¶ 79), and describe the various vignettes in the Film (id. ¶¶ 94-97). The Complaint alleges that the use of Plaintiffs’ logo in the Film and trailer “greatly diminishes and/or dilutes” the logo’s “value and goodwill.” (Id. ¶¶ 101, 105). Plaintiffs also allege that “as a direct and proximate result” of the Film, “Plaintiffs’ personal and professional reputations have been injured.” (Id. ¶ 127). ARGUMENT The standard for securing the extraordinary relief of a preliminary injunction in the Second Circuit is well-established. The proponent of the motion carries the heavy burden of showing: “(1) irreparable harm and (2) either (a) likelihood of success on the merits, or (b) sufficiently serious questions going to the merits of its claims to make them a fair ground for litigation, plus a balance of the hardships tipping decidedly in favor of the moving party.” Miller v. Miller, No. 3:18-cv-01067 (JCH), 2018 WL 3574867, at *2 (D. Conn. July 25, 2018) (citations omitted). 9

PDF Page 19	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 18 of 44 “Additionally, the moving party must show that a preliminary injunction is in the public interest.” Id. (citation omitted). “A showing of irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction.” Id. (quoting Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009)). “To satisfy the irreparable harm requirement, [Plaintiffs] must demonstrate that absent a preliminary injunction [they] will suffer an injury that is neither remote nor speculative, but actual and imminent and one that cannot be remedied if a court waits until the end of trial to resolve the harm.” Brooks v. Consensus Strategies, LLC, No. 3:07-cv-0560 (PCD), 2007 WL 9754573, at 2 (D. Conn. June 18, 2007) (quoting Grand River Enterprise Six Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir. 2007)). Irreparable harm exists only where a monetary award cannot provide adequate compensation for the alleged injury. Id. The standard for the issuance of a temporary restraining order is the same as that for the issuance of a preliminary injunction. Id. Here, Plaintiffs have not met their heavy burden. I. PLAINTIFFS HAVE FAILED TO DEMONSTRATE IRREPARABLE HARM As noted above, where a plaintiff cannot prove irreparable harm, a preliminary injunction must be denied. Miller, 2018 WL 3574867, at 2 (citing Faiveley, 559 F.3d at 118). Here, Plaintiffs cannot prove irreparable harm for two independent reasons. First, the damage Plaintiffs allege has already substantially occurred. This alone is sufficient basis for the Court to deny Plaintiffs’ request for a preliminary injunction. See Brooks, 2007 WL 9754573, at *2 (denying temporary restraining order and preliminary injunction where “[t]he harm that [plaintiff] alleges in his Complaint has already occurred”); Marcy Playground, Inc. v. Capitol Records, 6 F. Supp. 2d 277, 282 (S.D.N.Y. 1998) (denying preliminary injunction against record albums that had 10

PDF Page 20	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 19 of 44 already been released without crediting plaintiffs, noting the alleged injury “already has occurred in virtually all material respects.”). Here, Plaintiffs complain that they are portrayed in The Laundromat as being behind a massive system of shell corporations and offshore accounts that provide cover for a variety of unethical and criminal activity, and that portrayal will result in injury to their personal and professional reputations. (Compl. ¶¶ 126-28.) However, Plaintiffs acknowledge in their Complaint that some of the offshore companies created by Mossack Fonseca were in fact involved in criminal activity. For instance, they admit that at least some percentage of offshore corporations created by Mossack Fonseca “appear[] to have been utilized by some [ultimate end users] for criminal activity including, but not limited to, money laundering, tax evasion, bribery and/or fraud.” (Id., ¶ 32; see id., ¶ 48 (acknowledging that some “number of companies sold by Plaintiffs to original clients were connected to [ultimate end user] criminal activity”.) Plaintiffs further object that the Film inaccurately portrays them as having connections to Cartel murders and Russian gangster money laundering. (Id., p. 5.1) However, mere pages later, they admit that socalled rumors resulting from the release of the Panama Papers themselves – years before the release of Defendants’ Film – painted them as involved with Russian President Vladimir Putin, former President of Ukraine Petro Poroshenko, as well as “notorious drug Cartel and/or other Organized Crime leaders.” (Id., ¶¶ 34-35.) Clearly, Plaintiffs’ reputations were sullied long before the release of Defendants’ Film. See Guccione v. Hustler Magazine, Inc., 800 F.2d 298, 303 (2d Cir. 1986) (“[A] plaintiff’s reputation with respect to a specific subject may be so badly tarnished that he cannot be further injured by allegedly false statements on that subject.”) (citation omitted). 1 The first seven pages of Plaintiffs’ Complaint contain unnumbered paragraphs, constraining Defendant to reference only page numbers. 11

PDF Page 21	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 20 of 44 Indeed, as Plaintiffs further acknowledge, long before the release of Defendant’s Film, the “press and media generated by the Panama Papers hack severely damaged [their] client relations and ongoing business prospects.” (Id., ¶ 37.) Banks and other entities refused to do business with them, and they ultimately were forced to shutter their doors due to the “loss of [their] entire client base.” (Id., ¶¶ 38-40.) As in Marcy Playground, “a preliminary injunction here would be very much like locking the barn door after the horse is gone.” 6 F. Supp.2d at 282. Plaintiffs offer further speculation about potential harm that might result from the possibility that Panamanian prosecutors would bring additional charges against them, or change the prosecution of their pending cases, as a result of the conduct allegedly portrayed in the Film. As an initial matter, the Film is a largely comedic morality tale that clearly states it is “based on”2 real events, but that it is an obviously fictionalized story. Davis v. Costa-Gavras, 654 F. Supp. 653, 657 (S.D.N.Y. 1987) (citing disclaimer as evidence that “film does not purport to depict . . . the events precisely as they occurred”). As the Supreme Court has recognized, audiences understand the difference between fictionalized portrayals and news reporting, which is intended to be literally true and accurate. Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 513 (1991). Moreover, while the Film identifies Plaintiffs as central figures in the story it is telling about the use of offshore corporations, it does not portray them directly participating in the murders, drug cartels, and other criminal activity referenced in the Complaint.3 Rather, it makes the point that much, if not all, of their conduct is legal, and its conclusion makes clear that it is an indictment of the system that enables such conduct. Plaintiffs maintain throughout their papers that they are 2 The trailer, which is repeatedly referenced in the Complaint (see, e.g., Compl., ¶ 78) offers a tongue-in-cheek description of the Film as “Based on Some Real Shit.” The Film itself similarly notes with a wink that its largely comedic presentation is “Based on Actual Secrets.” (See Ferber Decl. Ex. B.) 3 The Mossack character does appear at the end of the vignette about a wealthy African businessman residing in the U.S. who uses a shell game to bribe and then cheat his own daughter, but that conduct is not criminal. 12

PDF Page 22	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 21 of 44 portrayed as villains in the Film, but they themselves supply evidence that that was neither the intent of the creators nor the takeaway of a reasonable viewer.4 For instance, Plaintiffs note that the director, Steven Soderbergh, stated in an interview: Scott and I were very adamant that they [Jurgen Mossack and Ramon Fonseca] not be stock villains, because we felt they as people were more complicated than that and the situation itself was more complicated than that. They did not invent these structures. This has been going on for a long time. They just figured out a way to do a high-volume business creating these kind of entities. (Pl. Br. at 24.) In other words, the Film is a critique of what it views as a corrupt system that Plaintiffs helped enable, and that is the anticipated perception of an objective viewer of the Film. Thus, the harm that Plaintiffs allege is highly unlikely to occur as a result of the Film. Indeed, Plaintiffs themselves acknowledge the speculativeness of the prospective harm that they allege. For instance, Plaintiffs plead that their portrayal in the Film “may subject Plaintiffs to unnecessary and unwanted legal attention,” and that they “could be subjected to additional bail and/or conditions for each new crime imputed to them in the movie.” (Compl. at p. 5.) Likewise, they allege that the Film portrayal “stand[s] to” pollute “a potential jury pool” in the U.S. (Id. at p. 6.) These claims are quite simply too remote and speculative to support a finding of irreparable harm. As for the purely speculative possibility of further investigations in Panama, Plaintiffs are already being prosecuted there (id. ¶¶ 41-42), presumably for their potential involvement in corruption, money laundering, and tax fraud, all of which were the subject of the Panama Papers. It strains credulity to conclude that the Film will cause investigators to widen their investigation, 4 Plaintiffs cite to the Affidavit of Arthur Ventura to support speculative propositions such as that the streaming distribution of the Film will subject Plaintiffs to criminal prosecution by the FBI. But Mr. Ventura’s various “opinions” are not based on sufficient facts nor are they the product of reliable principles and methods. Cf. Fed. R. Evid. 702(b)-(c). Rather, Mr. Ventura opines, without any reasoned, scientific basis, or polling, or survey data, that audiences will leave the Film with the impression that Mossack and Fonseca were directly responsible for certain criminal activities. But Mr. Ventura’s long career in law enforcement does not make him a reliable arbiter of whether a given scene will have a “chilling effect” on the Film’s audience. (Ventura Aff. ¶ 32). 13

PDF Page 23	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 22 of 44 or that the Film’s creators will be at fault if Panamanian prosecutors conclude that additional charges should be brought against Plaintiffs. Plaintiffs’ argument about polluting a potential jury pool is yet more remote given that they have not even been charged in the United States. (Pl. Br. at 9-10.) Plaintiffs attempt to shore up their jury pool argument by pointing to the indictment of one of their associates and the reference of their firm in the charging papers. (Id. at 9.) However, Plaintiffs have no privileged view into the minds of the federal prosecutors in the Southern District of New York. And even if Plaintiffs were charged, the release of the Film is unlikely to reach a wider audience than the published reports of the Panama Papers, nor is it likely to prejudice every potential New Yorker juror who may not have already read about and formed an opinion of Plaintiffs. In fact, that is precisely what measures such as voir dire are intended to protect against. See Hunt v. National Broadcasting Co., 872 F.2d 289, 296 (9th Cir. 1989) (denying TRO and preliminary injunction against broadcast of docudrama concerning plaintiff’s planning and commission of a murder, notwithstanding his claim the Film would pollute the jury pool in his pending case, finding that he had failed to meet the high burden of showing that the absence of a preliminary injunction would prevent securing twelve jurors who could render an unbiased verdict, including because he failed to consider alternatives to prior restraint, such as voir dire, jury instructions, or change of venue). In sum, these allegations are textbook examples of remote and speculative harm that cannot support the issuance of a preliminary injunction. Roy Exp. Co. Establishment v. Trustees of Columbia Univ., 344 F. Supp. 1350, 1353-54 (S.D.N.Y. 1972) (finding possibility of future harm insufficient to support issuance of preliminary injunction). Plaintiffs themselves are likely aware of these weaknesses in their case, given that they delayed for nearly a year and a half from the publication of Mr. Bernstein’s book on which the 14

PDF Page 24	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 23 of 44 Film was allegedly based (in November 2017, according to Amazon5), which they also claim to be defamatory6 (Compl. ¶ 54), and then continued to delay another approximately six weeks while the Film was being advertised throughout the United States in print advertisements and on YouTube beginning August 28, 2019, shown at international film festivals, and then released in theaters in New York and Los Angeles on September 27, 2019. (Davin Decl. ¶¶ 2-4.) Based upon the October 4, 2019 date in the draft Complaint forwarded by Plaintiffs’ counsel to Netflix on the evening of Friday, October 11, the Complaint had been complete for at least a week, but Plaintiffs chose not to file or serve it. Plaintiffs’ substantial delay in seeking to enjoin the Film – all while Netflix invested resources in securing theater space, creating advertising, and disseminating marketing (Davin Decl. ¶¶ 5-7) – weighs heavily against a finding of irreparable harm. Citibank, N.A. v. Citytrust, 756 F.2d 273, 276 (2d Cir. 1985) (denying preliminary injunction due to plaintiff’s 10-week delay, and noting, “Preliminary injunctions are generally granted under the theory that there is an urgent need for speedy action to protect the plaintiffs’ rights. Delay in seeking enforcement of those rights, however, tends to indicate at least a reduced need for such drastic, speedy action.”) (citations omitted); see Tom Doherty Assocs. v. Saban Entm’t, Inc., 60 F.3d 27, 39 (2d Cir. 1995) (holding that “[a] district court should generally consider delay in assessing irreparable harm,” particularly where “the defendant had taken costly steps during the period of delay that would be at least temporarily undone by injunctive relief”) (citations omitted). The cases Plaintiffs cite in support of their claimed irreparable harm do not salvage their failed position. Plaintiffs claim that they have established irreparable harm if they will be deprived of a constitutional right, presumably referencing their speculative claim that the Film could impact 5 Available at https://www.amazon.com/Secrecy-World-Investigation-Illicit-Networks/dp/1250126681. Significantly, Plaintiffs apparently never asserted legal claims against the book, even though the Complaint contains a litany of allegations about it and its author. (See, e.g., Compl. ¶¶ 46-59.) 6 15

PDF Page 25	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 24 of 44 either a Panamanian investigation or a potential jury pool in the U.S. Putting aside the speculativeness of the harm, the cases Plaintiffs cite are completely inapposite to the case at hand. Both Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984), which implicates the Eighth Amendment in a prison overcrowding case, and Heublein v. F.T.C., 539 F. Supp. 123 (D. Conn. 1982), concerning Federal Trade Commission approval for a corporate merger, involve state actors allegedly depriving citizens of their constitutional rights. Here, Defendant is not a state actor that is constitutionally required to ensure it does not deprive citizens of their constitutional rights. Plaintiff’s second claimed irreparable harm, loss of goodwill or damage to reputation, is quite simply meritless given the acknowledged severe damage to Plaintiffs’ reputations that has already occurred over the last several years – long before the release of the Film as a result of the publication of the Panama Papers. (Compl. ¶¶ 37-40.) Plaintiffs’ cited cases, in addition to being non-binding cases from the Fourth and Eighth Circuits, respectively, stand for the unremarkable proposition that damage to reputation may support a finding of irreparable harm. They have no bearing on Plaintiffs’ particular problem, namely, that their reputations and goodwill have already been so damaged that they have already lost all of their clients and were forced to close their business well over a year before the release of the Film. (Pl. Br. at 14; Compl. ¶ 40.) See MultiChannel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 22 F.3d 546, 552 (4th Cir. 1994) (involving a dispute between two competing cable companies, but the plaintiff had suffered no independent reputational damage apart from the alleged conduct of the defendant); Planned Parenthood of Minnesota, Inc. v. Citizens for Community Action, 558 F.2d 861, 867 (8th Cir. 1977) (finding Planned Parenthood’s business – which had suffered no reputational damage – would be imperiled by the prospect of having to interrupt its service; here, Plaintiffs’ business has already 16

PDF Page 26	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 25 of 44 been interrupted). Furthermore, Plaintiffs offer no evidence that their clients are the likely consumers of Defendant’s Film. Thus, Plaintiffs fail to demonstrate that they are likely to suffer irreparable harm in the absence of an injunction. II. PLAINTIFF IS NOT LIKELY TO SUCCEED ON THE MERITS OF ITS CLAIMS A. Plaintiffs’ Requested Preliminary Injunction Is An Unconstitutional Prior Restraint As a threshold matter that should obviate the need to address likelihood of success on the merits, the requested injunction is an unconstitutional prior restraint on free expression. It seeks to enjoin Netflix’s continued showing of its Film, as well as its release to its subscribers on the Netflix platform, before that speech has been adjudicated to be defaming – which it is unlikely to be for the reasons described in Section II.B below. “A prior restraint on expression comes . . . with a heavy presumption against its constitutional validity. Indeed, prior restraints are the most serious and least tolerable infringement on First Amendment rights.” Metropolitan Opera Ass’n, Inc. v. Local 100, Hotel Employees & Rest. Employees Int’l. Union, 239 F.3d 172, 176 (2d Cir. 2001). “When a prior restraint takes the form of a court-issued injunction, the risk of infringing on speech protected under the First Amendment increases.” Id. (citation omitted). Beyond the First Amendment’s “heavy presumption” against prior restraints, “courts have long held that equity will not enjoin a libel.” Id. (citations omitted); see American Malting Co. v. Keitel, 209 F. 351, 354 (2d Cir. 1913) (“Equity will not restrain by injunction the threatened publication of a libel, as such, however great the injury to property may be. This is the universal rule in the United States…”). “Thus, because defamation can ordinarily be remedied by damages, injunctions are not appropriate in such actions absent extraordinary circumstances, such as intimidation and coercion.” Miller, 2018 WL 3574867, at *3. “Indeed, even where extraordinary 17

PDF Page 27	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 26 of 44 circumstances are present, the Second Circuit has suggested that First Amendment principles may nonetheless prohibit granting an injunction.” Id. (citing Metropolitan Opera, 239 F.3d at 177).7 Here, no such extraordinary circumstances are present, and the established rule against prior restraints on speech bars Plaintiffs’ requested temporary restraining order and preliminary injunction. Plaintiffs urge the Court that the potential for the Film to result in “unnecessary and unwanted legal attention” (Compl., p. 5) justifies undermining Defendant’s First Amendment protections. Not so. First, the Film does not attempt to intimidate or coerce Plaintiffs. Miller, 2018 WL 3574867, at *2. Thus, there are no extraordinary circumstances here – just an ordinary defamation action, which Second Circuit precedent firmly establishes does not warrant the issuance of an injunction. See, e.g., United States v. Quattrone, 402 F.3d 304, 309-12 (2d Cir. 2005) (Sotomayor, J.) (overruling district court’s order barring publication of juror’s names to ensure a fair trial, stating the order was a prior restraint and an infringement on the press’ freedom to publish information). Second, even if potential adverse legal ramifications were somehow qualified as extraordinary circumstances justifying departure from the established rule, as already explained, here the harm Plaintiffs allege is speculative at best. They have already admitted that they, or offshore corporations they created, were in fact involved in criminal conduct, and that in fact they are already being prosecuted for such conduct. Notwithstanding Plaintiffs’ protestations to the contrary, there is no reason to believe that this Film will necessarily result in any additional 7 Plaintiffs cite one case, Bingham v. Straude, 184 A.D.2d 85 (1st Dep’t 1992), for the proposition that where all the elements for preliminary injunctive relief were demonstrated, injunctive relief based upon a claim of libel was appropriate. However, Bingham is distinguishable on its facts. It did not involve a media defendant or an artistic or expressive work. Rather, plaintiff was being maligned and harassed by his ex-lover, who was sending communications to his family and friends alleging sexual misconduct, among other things. Beyond her harassing conduct, the defendant seemed unstable, lacked credibility in the defamatory comments she made about plaintiff, and regularly contradicted herself in her own filings, including by claiming she had born plaintiff’s child and then denying that she ever made that allegation. Thus, this case is an outlier, manifestly different from the one before the Court, which does not undermine the legitimacy of the general rule against prior restraints in libel cases. 18

PDF Page 28	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 27 of 44 prosecutions or investigations, or that all potential jurors in New York will be compromised. The Ninth Circuit addressed this precise issue in Hunt v. National Broad. Co., 872 F.2d 289, 296 (9th Cir. 1989). There, the court affirmed the denial of a TRO and preliminary injunction against NBC’s scheduled broadcast of docudrama “Billionaire Boys Club” concerning plaintiff’s planning and commission of a murder. The plaintiff alleged that the airing of the docudrama would impede his right to a fair trial. The Ninth Circuit pointed out that the controlling Supreme Court precedent, established in Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 562 (1976), sets out an exacting standard, under which a prior restraint is permitted “only if its absence would prevent securing twelve jurors who could, with proper judicial protection, render a verdict based only on the evidence admitted during trial.” Hunt, 872 F.2d at 295 (citation omitted). The Ninth Circuit found that plaintiff failed to make the necessary showing, including because he had not demonstrated that alternatives to prior restraint, such as voir dire, jury instructions, or change of venue, would not suffice to protect his rights. Id. at 295-96. Finally, because the docudrama had already aired, the proposed prior restraint would not effectively protect his rights: “NBC’s docudrama aside, substantial and unrestrained publicity concerning Hunt and the Billionaire Boys Club has already been exposed to the public.” Id. at 296. The same analysis applies here, and Plaintiffs’ arguments in favor of a TRO and preliminary injunction should be similarly rejected. Finally, and significantly, The Laundromat – which uses a palpably comedic, at times farcical, entertainment vehicle to expose an immoral financial system – does not portray Plaintiffs as direct participants in murders, drug-dealing, and other criminal activity. In fact, it portrays Plaintiffs (in a patently caricaturish, non-factual manner) as being largely oblivious to the ways in which some of the shell entities they have set up are being abused, and it indicts the system for making such enterprises largely, if not entirely, legal. Ferber Decl., Ex. A. Therefore, the 19

PDF Page 29	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 28 of 44 speculative and uncertain harm to Plaintiffs alleged in the Complaint cannot justify the certain interference with Defendant’s First Amendment rights and its ability to participate in the public discourse on this important matter of public concern. B. Plaintiffs Are Unlikely To Succeed On The Merits Of Their Defamation Claims Under Connecticut law, to prove defamation, Plaintiffs must demonstrate that: “(1) a defamatory statement was made by the defendant; (2) the defamatory statement [of fact] identifies the plaintiff to a reasonable reader; (3) the defamatory statement is published to a third person; and (4) the plaintiff’s reputation suffers injury.” Zupnik v. Associated Press, Inc., 31 F. Supp. 2d 70, 72 (D. Conn. 1998) (citation omitted); Gifford v. Taunton Press, Inc., No. DBSCV186028897S, 2019 WL 3526461, at *12 (Conn. Super. Ct. July 11, 2019). Plaintiffs’ defamation claim fails for three independent reasons: (1) the Film is not a false publication of fact concerning Plaintiffs; (2) the injury to Plaintiffs’ reputation has already occurred due to the frenzy of media attention surrounding the 2016 publication of the Panama Papers, and no further injury will result from Defendant’s Film; and (3) Plaintiffs are public figures who may recover for injury to reputation only upon clear and convincing proof that the defamatory falsehood was made with actual malice, which Plaintiffs cannot do. 1. The Film Is Not A False Publication Of Fact Concerning Plaintiffs Plaintiffs’ defamation claim fails because the Film is not a false publication of fact concerning Plaintiffs. First, to the extent that the Film portrays Plaintiffs as characters engaged in activity that enables criminal activity – which is not the central point of the Film, as explained above – it meets the substantial truth standard set forth under the Second Circuit’s defamation law. See Chau v. Lewis, 771 F.3d 118, 129 (2d Cir. 2014) (finding that a statement need not be completely true, but can be substantially true, as when the overall gist or substance of the 20

PDF Page 30	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 29 of 44 challenged statement is true); Georgetti v. Nexstar Media Grp., Inc., No. NNHCV186087491S, 2019 Conn. Super. LEXIS 2280, at *13 (Conn. Super. Ct. Aug. 15, 2019) (“Contrary to the common-law rule that required the defendant to establish the literal truth of the precise statement made, the modern rule is that only substantial truth need be shown to constitute the justification.”). Here, Plaintiffs have admitted that offshore companies created by their firm were implicated in criminal activity, including money laundering, tax evasion, bribery, and fraud. (Compl., ¶¶ 32, 48.) The fact that dialogue or some subplots of the storyline of The Laundromat were fictionalized does not change the substantial truth of the Film’s narrative. 2. The Injury to Plaintiffs’ Reputation Has Already Occurred A necessary element of pleading and proving a defamation claim is that Plaintiffs’ reputation suffers an injury as a result of the allegedly defamatory statement. See Zupnik, 31 F. Supp. 2d at 72. Here, as Plaintiffs themselves acknowledge, their reputations have already been “severely damaged,” ultimately resulting in the loss of their “entire client base” and the closure of the firm. (Compl., ¶¶ 37-40.) In other words, “[Plaintiffs’] reputation with respect to [this] specific subject [is] so badly tarnished that [they] cannot be further injured by allegedly false statements on [this] subject.” Guccione, 800 F.2d at 303 (citation omitted); see Cardillo v. Doubleday & Co., 518 F.2d 638, 639 (2d Cir. 1975). Thus, Plaintiffs cannot make out a prima facie case of defamation. 3. Plaintiffs Are Public Figures But Cannot Prove Actual Malice As noted above, under Connecticut defamation law, “[t]hose who are public figures . . . may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with such actual malice.” Zupnik, 31 F. Supp. 2d at 72 (citations & quotations omitted). 21

PDF Page 31	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 30 of 44 a. Plaintiffs Are Public Figures Those who play central roles in crimes or scandals are often found to be public figures for the purposes of reporting and narratives concerning those incidents. In Zupnik, for instance, the court concluded the plaintiff, the wife of a doctor who had become notorious as a result of numerous allegations of criminal conduct and professional negligence, was “thrust into the role of a public figure by virtue of her marriage to Dr. Zupnik.” Id.; see Meeropol v. Nizer, 560 F.2d 1061, 1066 (2d Cir. 1977), cert. denied, 434 U.S. 1013 (1978) (“In the course of extensive public debate revolving about the Rosenberg Trial [their children] were cast into the limelight and became public figures under the [Supreme Court’s] Gertz standards.”); Dameron v. Washington Magazine, Inc., 779 F.2d 736, 741 (D.C. Cir. 1985) (Air Traffic Controller who was an ordinary citizen became an involuntary public figure in relation to discussions of the air crash that took place while he was on duty); Fuller v. Day Pub. Co., No. 030565104, 2004 WL 424505, at *5 (Conn. Super. Ct. Feb. 23, 2004), aff’d, 872 A.2d 925 (Conn. App. Ct. 2005) (finding plaintiff was a limited purpose public figure where she “voluntarily injected herself into the limelight by committing a crime,” and “invited public comment relating to her involvement in a high profile criminal case. . .”). As in Zupnik, here Plaintiffs, too, have become public figures due to their central role in an extensive public debate following the release of the “Panama Papers” and the system of shell corporations, tax evasion, and corruption which was thereby revealed. According to the Complaint, Plaintiffs already were well-known worldwide as a result of their work in the offshore industry. (Compl., ¶¶ 18-19.) Following the publication of the “Panama Papers,” they further involved themselves in the public debate concerning that topic by, amongst other things, giving interviews to national news outlets, including CNBC and the Wall Street Journal, and even 22

PDF Page 32	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 31 of 44 speaking to the author of the book on which the movie was based.8 (Ferber Decl., ¶ 6 & Exs. DF; Compl. ¶ 53.) Thus, Plaintiffs have “voluntarily inject[ed] [themselves] or [been] drawn into a particular public controversy and thereby become[] . . . public figure[s] for a limited range of issues.” Fuller, 2004 WL 424505, at *5. In defense of their claim not to be public figures, Plaintiffs cite Wolston v. Reader’s Digest Ass’n, Inc., 443 U.S. 157, 168 (1979), which found that the nephew of accused Soviet spies who refused to appear for grand jury testimony was not a public figure in connection with that controversy. Wolston is distinguishable on its facts. First, the plaintiff there was tangential to the actual controversy, which involved his aunt and uncle, unlike the Plaintiffs here, who are undeniably at the center of the web of offshore tax shelters that are central to the story. Second, in Wolston, the Court emphasized that the plaintiff was a private individual who occupied a position of “relative obscurity.” Id. at 165. Here, in contrast, Plaintiffs allege that they had significant reputations prior to the release of the Panama Papers, and after their release, they continued to insert themselves into the public controversy, including by granting interviews to major news outlets, such as CNBC and the Wall Street Journal, and speaking with Mr. Bernstein concerning the Book. (Ferber Decl., ¶ 6 & Exs. D-F; Compl., ¶ 53.) b. Plaintiffs Have Not Sufficiently Alleged And Cannot Prove Actual Malice Therefore, to support their defamation claim, Plaintiffs are required to prove that Defendant acted with actual malice in making the allegedly defamatory statements in the Film, meaning that they acted with actual knowledge of the falsity of the statements or with reckless disregard as to their truth. Biro v. Conde Nast, 963 F. Supp. 2d 255, 276 (S.D.N.Y. 2013), aff’d, 877 F.3d 541 8 Jurgen Mossack gave interviews to CNBC and the Wall Street Journal in April 2016, and Ramon Fonseca gave an interview to journalists, excerpts of which were subsequently published in Reuters and Associated Press Articles. (Ferber Decl., ¶ 6 & Exs. D-F.) 23

PDF Page 33	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 32 of 44 (2d Cir. 2015), aff’d, 622 F. App’x 67 (2d Cir. 2015); Gifford, 2019 WL 3526461, at *12. Actual malice is “a difficult standard to meet, and quite purposefully so,” given the importance of the free expression right at stake. Biro, 963 F. Supp. at 277. Furthermore, “not only is proving actual malice a heavy burden, but, in the era of Iqbal and Twombly, pleading actual malice is a more onerous task as well.” Id. at 278. Following the Supreme Court’s decision in Iqbal, where a particular state of mind is a necessary element of a claim, the pleading of that state of mind must be plausible and supported by factual allegations, not mere conclusory recitations of the legal standard. See id. at 278. This is especially warranted in the context of defamation cases given the difficulty of proving actual malice and the fact that actual malice must be proven by clear and convincing evidence in order for the plaintiff to succeed. Id. Here, there are no allegations in the Complaint that sufficiently plead actual malice. Instead, Plaintiffs do no more than recite the bare legal standard of actual malice, hoping the Court will overlook their failure to properly plead their claim. (See, e.g., Compl., ¶¶ 122-23.) In fact, the Complaint actually underscores the fact that Defendant did not act with the requisite disregard for truth required by a defamation cause of action. For instance, Plaintiffs allege that Netflix based the film on Mr. Bernstein’s book (Compl., ¶¶ 61-62), the credibility of which Netflix would have no reason to doubt, particularly given that Plaintiffs never asserted defamation claims based on the book in the nearly two years since it was published. Davis v. Costa-Gavras, 654 F. Supp. 653, 657 (S.D.N.Y. 1987) (finding no actual malice where maker of docudrama relied on book in creation of film). Furthermore, it is well-established that fictionalized films, like The Laundromat, partake in literary license, including “simulated dialogue, composite characters, and a telescoping of events occurring over a period into a composite scene or scenes.” Davis, 654 F. Supp. at 658. The use 24

PDF Page 34	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 33 of 44 of such conventions is “singularly appropriate and unexceptionable,” and if the “alterations of fact in scenes portrayed are not made with serious doubts of truth of the essence [of the scene portrayed], such scenes do not ground a charge of actual malice.” Id.9 Moreover, as in other factually-inspired films approved by courts in the Second Circuit, The Laundromat repeatedly makes clear that it is a fictionalization, with the facetious statement that it is “based on actual secrets,” or as the trailer says, “Based on Some Real Shit,” but that it is not intended to be taken as a factual representation. (Ferber Decl., Ex. B.) Davis, 654 F. Supp. at 657. Such expressive works are a vital and persuasive means of entering into public discourse about a matter of political and historical importance.10 However, modern audiences understand the nature of such film and are well aware that what they see on the screen is not the literal truth or a literal reenactment of events as they happened. Indeed, the Supreme Court has recognized the different expectations of historical accuracy an audience will have when confronted with a dramatic presentation as opposed to a news article. See Masson, 501 U.S. at 513 (“[A]n acknowledgement that the work is a so-called docudrama or historical fiction . . . might indicate that the quotations should not be interpreted as the actual statements of the speaker to whom they are attributed.”). As the California Court of Appeal recently explained in dismissing actress Olivia De Havilland’s defamation suit against the makers of the docudrama Feud, When the expressive work at issue is fiction, or a combination of fact and fiction, the “actual malice” analysis takes on a further wrinkle. De Havilland argues that, because she did not grant an interview at the 1978 Academy Awards or make the “bitch sister” or “Sinatra drank the alcohol” remarks to Bette Davis, Feud’s creators acted with actual malice. But fiction is by definition untrue. 9 This reasoning applies with greater force to the Film, which, unlike the serious dramatic motion picture at issue in Davis, is an obviously comedic, and at times even farcical, presentation. 10 See Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501 (1952) (recognizing that “[t]he importance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform.”); Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 65 (1981) (“Entertainment, as well as political and ideological speech, is protected; motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works, fall within the First Amendment guarantee.”) (citations omitted). 25

PDF Page 35	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 34 of 44 It is imagined, made-up. Put more starkly, it is false. Publishing a fictitious work about a real person cannot mean the author, by virtue of writing the fiction, has acted with actual malice. De Havilland v. FX Networks, LLC, 21 Cal. App. 5th 845, 869 (Cal. App. 2018), review denied, No. S2448614, 2018 Cal. LEXIS 5034 (Cal. July 11, 2018), cert. denied, 139 S. Ct. 800 (2019) (dismissing defamation action, awarding defendants their fees and costs). This analysis likewise applies to Plaintiffs’ claim of libel based upon so-called innuendo and implication, which in fact, is simply a more tenuous and less sustainable version of a libel claim. (Pl. Br. at 18.) For the foregoing reasons, Plaintiffs are not likely to succeed on their defamation claims. C. Plaintiffs Are Unlikely To Succeed On The Merits Of Their False Light Privacy Claim Under Connecticut law, 11 to establish invasion of privacy by false light, the plaintiff must show “(a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.” Miles v. City of Hartford, 719 F. Supp. 2d 207, 216 (D. Conn. 2010), aff’d, 445 F. App’x 379 (2d Cir. 2011) (dismissing false light privacy claim because plaintiff could not show the statement at issue was false) (citations omitted). As with defamation, “the right of privacy must give way when balanced against the publication of matters of public interest, in order to insure the uninhibited robust and wide-open discussion of legitimate public issues.” Jensen v. Times Mirror Co., 634 F. Supp. 304, 310 (D. Conn. 1986) (citations & quotations omitted). Thus, it is “largely the same analyses” as was made above with respect to the defamation claim, and for the same reasons must fail. Id. at 310. 11 As explained in Defendant’s motion to dismiss or, in the alternative, to transfer venue, neither Plaintiffs nor the making or marketing of the Film concern Connecticut, so it is unclear that Connecticut law would apply, and the controlling law may not recognize a false light claim. 26

PDF Page 36	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 35 of 44 First, Plaintiffs were already very much in the public eye, for the same reasons that they are portrayed in the Film, prior to the release of the Film. Therefore, their allegation that Defendant has unreasonably placed them in a false light before the public is simply untenable. Second, under the First Amendment, “a media defendant can be liable for a false light invasion of privacy only where it publishes highly offensive material without regard to its falsity, and to the false impression relayed to the public.” Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 132 (1982). “As long as the matter published is substantially true, the defendant was constitutionally protected from liability for a false light invasion of privacy . . .” Id. As explained in detail above, Defendants’ Film is a largely comedic morality tale, not a newspaper report. Moreover, the gist of the Film – that offshore shell corporations are abused by the powerful and wealthy, including criminals – is substantially true, which provides a complete defense to Plaintiffs’ false light claim. Therefore, for the reasons more fully set forth in Section II.B, Plaintiffs’ false light claim must fail. D. Plaintiffs’ Claims Fail Under Connecticut’s Anti-SLAPP Statute Connecticut’s Anti-SLAPP law, Section 52-196a, permits a defendant to dismiss a lawsuit brought against it if the suit is “‘based on the defendant’s exercise of its right to free speech,’ . . . under the state or federal constitutions ‘in connection with a matter of public concern.’” Cronin v. Pelletier, No. CV186014395S, 2018 WL 3965004, at *1 (Conn. Super. Ct. July 26, 2018) (quoting statute) (dismissing plaintiff’s libel per se claim). The statute defines “right of free speech” as “communicating, or conduct furthering communication, in a public forum on a matter of public concern.” Conn. Gen. Stat. § 52-196a(a)(2) (West). The statute in turn defines “matter of public concern,” in pertinent part, to include “an issue related to . . . (B) . . . economic or community well-being, (C) the government, . . . and other regulatory matters, (D) a . . .public 27

PDF Page 37	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 36 of 44 figure, or (E) an audiovisual work.” Id., § 52-196a(a)(1). Here, Defendant’s Film is an audiovisual work disseminated publicly that concerns a matter of great public concern, namely, the U.S. regulatory system, which permits the creation of offshore shell companies as tax havens to protect the ultra-rich.12 Thus, Defendant has met its initial burden of showing, by a preponderance of the evidence, that Plaintiffs’ Complaint is based on Defendant’s exercise of its right of free speech in connection with a matter of public concern. Therefore, the court “shall grant a special motion to dismiss” unless Plaintiffs are able to “set forth with particularity the circumstances giving rise to the Complaint . . . and demonstrates to the court that there is probable cause, considering all valid defenses, that the party will prevail on the merits of the complaint.” Section 52-196a(e)(3). This it cannot do for the reasons outlined in Sections II.A-C above. See Georgetti, 2019 Conn. Super. LEXIS 2280, at *1 (granting motion to dismiss police officer’s complaint alleging defendants defamed him in a news report stating that he had been accused of sexual misconduct and had been suspended without pay under Connecticut Anti-SLAPP statute, finding that plaintiff could not prove actual malice as a matter of law). E. Plaintiffs Are Unlikely To Succeed On The Merits Of Their Trademark Dilution Claim 1. Plaintiffs Cannot Prove Their Mark Is “Famous” For Dilution Purposes Under the Lanham Act, only famous marks are eligible for protection against dilution by blurring or by tarnishment (Plaintiffs allege the latter).13 15 U.S.C. § 1125(c)(1). In order to be “famous,” a mark must be “widely recognized by the general consuming public of the United 12 That this subject status is a matter of public concern is beyond dispute given the extensive international media attention that followed the publication of the Panama Papers. 13 Plaintiffs confusingly assert that viewers will assume Plaintiffs endorse or approve of the logo’s use. (Plaintiffs’ Br. at 6.) That is not an element of a dilution claim (it is an element of an infringement claim, which Plaintiffs have not pled). In any event, given the parodic nature of and critical commentary contained in the Film, it is inconceivable that viewers would assume Plaintiffs approved of or endorsed the Film. 28

PDF Page 38	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 37 of 44 States” as a designation indicating a single source of goods or services. Id. at § 1125(c)(2)(A) (emphasis added). It is a difficult and demanding requirement, and one that Plaintiffs’ mark MOSSACK FONSECA mark and logo unquestionably does not meet. See, e.g., Coach Services, Inc. v. Triumph Learning LLC, 668 F.3d 1356 (Fed. Cir. 2012) (finding evidence did not prove COACH was a “famous” mark for dilution purposes). A number of courts, including the Second Circuit, have said that to qualify as “famous” for purposes of dilution, the mark must be a “household name” – “a name immediately familiar to very nearly everyone, everywhere in the nation.” 4 McCarthy on Trademarks and Unfair Competition, § 24:104 (5th 3d. 2019); Schutte Bagclosures, Inc. v. Kwik Lok Corp., 193 F. Supp. 3d 245, 283 (S.D.N.Y. 2016), aff’d, 699 F. App’x 93 (2d Cir. 2017) (“Only trademarks that enjoy such broad renown so as to at least approach (if not attain) the status of ‘household names’ may qualify as famous marks under federal law.”). Thus, “‘niche fame’ among a specific marketplace or group of consumers is insufficient . . .” Id. (citation omitted). Here, Plaintiffs have at best alleged only niche fame, claiming that its “logos were widely recognized by consumers in Plaintiffs’ industry and became famous well prior to Netflix’s unlawful use of the logo.” (Compl., ¶ 131 (emphasis added).) Thus, by Plaintiffs’ own admission, their mark and logo is not sufficiently famous to merit protection under Section 43(c) of the Lanham Act. Plaintiffs assert in their Brief that because Colombia, where the MOSSACK FONSECA mark is registered, is a member of the international treaty, the General Inter-American Convention for Trade Mark and Commercial Protection, it is not required to prove fame in order to bring a dilution claim. However, they cite no provision of the treaty in support of this remarkable claim, nor do they cite a single case. Therefore, this argument is unsupportable. 29

PDF Page 39	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 38 of 44 2. Plaintiffs’ Dilution Claim Fails Because Plaintiffs’ Mark Is Already Tarnished In addition to its lack of fame, as admitted throughout the Complaint, Plaintiffs’ logo and the goodwill that it represents have already been so thoroughly tarnished that its portrayal in The Laundromat – in connection with the same subject matter that has already made headlines throughout the United States – cannot possibly sustain a cause of action for tarnishment. For instance, as the Complaint acknowledges, “[i]mmediately after initial news reports of hack revelations, and the rumors concerning [Plaintiffs’] alleged clients, banks and other third parties refused to do business with [Plaintiffs’ firms].” (Id., ¶ 38.) As a consequence of the “severe[] damage[]” caused to Plaintiffs’ firms’ reputation (id., ¶ 37), it ultimately was forced to close its offices and lost its entire client base. (Id., ¶ 40.) As Plaintiffs admit, they have already “suffered damage to the goodwill and value their business as a result of the “hack and release” of the Panama Papers. (Id., ¶ 43.) 3. Defendants’ Work Falls Within The Noncommercial Use Exception To The Dilution Statute Finally, as an artistic work, The Laundromat falls within the “noncommercial use” liability exemption to dilution protection under Section 43(c) of the Lanham Act because it presents a farcical view of the conduct exposed in the “Panama Papers,” intended to provide a critical commentary on the use of offshore companies to provide tax shelters for the wealthy. Smith v. Wal-Mart Stores, Inc., 537 F. Supp. 2d 1302 (N.D. Ga. 2008) (citing Mattel v. Walking Mountain Prods, 353 F.3d 792, 812 (9th Cir. 2003) (“[T]arnishment caused by an . . . artistic parody which satirizes [the complainant’s] . . . image is not actionable under an anti-dilution statute because of the free speech protections of the First Amendment.”)). 30

PDF Page 40	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 39 of 44 F. Plaintiffs Are Unlikely To Succeed On The Merits Of Their Trademark Claims Under the Rogers Rule Artistic expression, such as Defendant’s film, is constitutionally protected speech. The application of the First Amendment’s protections to motion pictures and other works of entertainment has been established since the Supreme Court’s decision in Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952), in which the Court recognized that “[t]he importance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform.” Id. at 501; see also Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 65 (1981) (“Entertainment, as well as political and ideological speech, is protected; motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works, fall within the First Amendment guarantee.”) (citations omitted). The conflict between Lanham Act claims and First Amendment protection for artistic works was addressed in the seminal case of Rogers v. Grimaldi, 695 F. Supp. 112 (S.D.N.Y. 1988), aff’d, 875 F.2d 994 (2d Cir. 1989), which held that the First Amendment precludes Lanham Act claims premised upon the title of an expressive work unless the title “has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless [it] explicitly misleads as to the source or the content of the work.” Id. at 999 (emphasis added). The Rogers test has been widely adopted and extended to use of both names and trademarks in the content of expressive works, as well as their titles, leading to such claims regularly being dismissed as a matter of law. See, e.g., Louis Vuitton Mallatier S.A. v. Warner Bros. Entm’t Inc., 868 F. Supp. 2d 172, 177 n.9 (S.D.N.Y. 2012) (use of trademark in context of film); Mattel, Inc. v. MCA Records, 296 F.3d 894, 902 (9th Cir. 2002) (use of trademark in title and content of song); ETW Corp. v. Jireh Publ’g, Inc., 332 F.3d 915, 928 (6th Cir. 2003) (use of name and trademark in marketing materials for 31

PDF Page 41	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 40 of 44 prints of painting); Sugar Busters LLC v. Brennan, 177 F.3d 258, 269 n.7 (5th Cir. 1999) (use of trademark in book title). Courts have found that the threshold for finding that the trademark at issue has artistic relevance to the underlying work is “appropriately low.” Rogers, 875 F.2d at 999; see Louis Vuitton, 868 F. Supp. 2d at 178 (“The threshold for artistic relevance is purposely low and will be satisfied unless the use has no artistic relevance to the underlying work whatsoever”) (citations & quotations omitted) (emphasis in the original); E.S.S. Entm’t 2000, Inc. v. Rock Star Videos, Inc., 547 F.3d 1095, 1100 (9th Cir. 2008) (finding that “the level of relevance merely must be above zero” to “merit First Amendment protection”). Here, Defendant more than meets that “appropriately low” threshold. The Laundromat employs the names of Plaintiffs, along with the names of their law firms, and the logo of MOSSACK FONSECA, all in the course of telling the fictionalized story of how these two lawyers found and exploited loopholes to help wealthy individuals and companies avoid taxation and other liabilities, largely through the creation of shell companies located offshore. Because these men, their companies, identified by the MOSSACK FONSECA logo, all feature in the real life events on which the Film is based, their use is artistically relevant to the work. See E.S.S. Entertainment 2000 Inc., 547 F.3d at 1095, 1098, 1100 (finding that video game creator’s use of “Pig Pen,” a virtual, cartoon-style strip club similar in look at feel to trademark owner’s Los Angeles strip club, was protected by the First Amendment from trademark and trade dress infringement claims; the court found artistic relevance because the creator sought to create a “cartoon-style parody of East Los Angeles,” and “a reasonable way to do that is to recreate a critical mass of the businesses and buildings that constitute it”); Dillinger, LLC v. Electronic Arts, Inc., No. 1:09-cv-1236-JMS-DKL, 2011 U.S. Dist. LEXIS 64006, at *14 (S.D. Ind. June 16, 2011) (finding the name “Dillinger” in 32

PDF Page 42	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 41 of 44 reference to a Tommy Gun was artistically relevant to the defendants’ The Godfather video game because “the gentleman-bandit, commonly known for his public persona as a flashy gangster who dressed well, womanized, drove around in fast cars, and sprayed Tommy Guns, has above-zero relevance to a game whose premise enables players to act like members of the mafia and spray Tommy Guns.”) (citation & quotations omitted). Thus, Plaintiffs’ Lanham Act claims will fail. III. THE BALANCE OF EQUITIES AND PUBLIC INTEREST TIP DECIDELY IN DEFENDANT’S FAVOR As noted above, Plaintiff points only to harm that has already occurred or speculative and conclusory assertions of potential harm should the Court deny its motion. As demonstrated in the accompanying Declaration of Christian Davin, defendant Netflix’s Marketing Vice President for Films, however, the harm to Netflix should an injunction be granted is both guaranteed and substantial. An injunction to prematurely halt the completion of the theatrical distribution of Laundromat would result in substantial lost revenue from ticket sales, lost investment in advertising and promotion of the Film, and lost investment in securing theater space. (Davin Decl., ¶ 5-7.) It would also prevent the imminent distribution of the Film on Netflix, which has been advertised for more than six weeks, resulting in harm to the company’s relationship with its subscribers, many of whom eagerly anticipate the Film’s streaming release. (Id., ¶ 7.) Furthermore, Defendant could not realize the same revenues from these forms of distribution in a subsequent year, because the advertising and promotion which was done for the Film in connection with its Fall release will have all but disappeared from the public consciousness by then. (Id., ¶ 7.) Thus, weighing the speculative or non-unique harm to the Plaintiffs against the “significant but unmeasurable economic injury” to Netflix, the balance of hardships decidedly favors Defendant. Marcy, 6 F. Supp. 2d at 283; see J.R. O’Dwyer Co. v. Media Mktg. Int’l, Inc., 755 F. Supp. 599, 606-07 (S.D.N.Y. 1991) (balance of hardships in favor of defendants, where 33

PDF Page 43	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 42 of 44 plaintiff offered only “conclusory assertion” of damage to revenues or reputation, and where defendants’ allegedly infringing public relations directory had already had substantial distribution, so that “the vast majority of whatever harm its publication [would] visit on [plaintiff] has occurred already”); see also Twentieth Century Fox Film Corp. v. Marvel Enters., Inc., 277 F.3d 253, 258 (2d Cir. 2002) (holding that “the equities weigh against halting a TV series now being aired because of alleged injury to a film sequel that is, at best, in the planning stage”). Likewise, the public interest weighs in favor of Defendant and against enjoining The Laundromat. As explained above, Plaintiffs’ claim of damage either have already occurred, such that an injunction would not spare them harm, or they are remote and speculative. In contrast, an injunction would impair Defendant’s First Amendment rights and impede public discourse on a matter of great public concern, namely systemic corruption and global inequality. See Salinger v. Colting, 607 F.3d 68, 82 (2d Cir. 2010) (“The public’s interest in free expression . . . is significant and is distinct from the parties’ speech interests. By protecting those who wish to enter the marketplace of ideas . . . , the First Amendment protects the public’s interest in receiving information. Every injunction issued before a final adjudication on the merits risks enjoining speech protected by the First Amendment.”) (citations & quotations omitted). IV. PLAINTIFF’S BOND WOULD HAVE TO BE AT LEAST $1 MILLION Rule 65(c) requires the posting of a proper bond by Plaintiff “for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained.” See, e.g., Nintendo of Am., Inc. v. Lewis Galoob Toys, Inc.¸16 F.3d 1032, 1037-39 (9th Cir. 1994) (holding that defendant who was wrongfully enjoined was entitled to recover full amount of $15 million bond). The failure to require a bond is reversible error. Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411, 421 (4th Cir. 1999). While Defendants submit 34

PDF Page 44	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 43 of 44 that Plaintiff’s motion is marked by a singular failure to satisfy the requirements for preliminary injunctive relief, should the Court grant the motion, a bond in the amount of at least $1 million should be required, in accordance with the facts set forth in the accompanying Davin Declaration. CONCLUSION For the foregoing reasons, Defendant Netflix, Inc. respectfully submits that the Court should deny Plaintiff’s motion for a temporary restraining order and preliminary injunction in all respects. Dated: New York, New York October 17, 2019 COWDERY & MURPHY, LLC By: __//s// James J. Healy_________________ James J. Healy 280 Trumbull Street, 22nd Floor Hartford, Connecticut 06103 (860) 278-5555 PRYOR CASHMAN LLP Tom J. Ferber Ilene Farkas Felicity Kohn Michael Adelman 7 Times Square New York, New York 10036 (212) 421-4100 Attorneys for Defendant Netflix Inc. 35

PDF Page 45	Case 3:19-cv-01618-JBA Document 20 Filed 10/17/19 Page 44 of 44 CERTIFICATION I hereby certify a copy of the foregoing was filed electronically on October 17, 2019. Notice of this filing will be sent by email to all parties by operation of the Court’s electronic filing system or by mail to anyone unable to accept electronic filing. Parties may access this filing through the Court’s system. By: //s// James J. Healy (ct28447) James J. Healy

MOSSACK FONSECA & CO., S.A. et al Document 20: MEMORANDUM in Opposition to Motion