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Case No. 08-80736-CIV-MARRA/JOHNSON
JANE DOE #1 AND JANE DOE #2,
Plaintiffs,
vs.
Defendant.
________________________________________/
Alan M. Dershowitz (herein, “Prof. Dershowitz”), a nonparty to this litigation, is the
victim of scurrilous allegations made in Jane Doe #3 and Jane Doe #4’s Motion Pursuant to Rule
21 for Joinder in the Action (the “Joinder Motion”), filed as of record at DE 279. Having no
remedy in this proceeding for the harm to his reputational interest, Prof. Dershowitz hereby seeks
to intervene in this action, both as of right under Fed. R. Civ. P. 24(a) and permissively under
Fed. R. Civ. P. 24(b), for the limited purposes of moving to strike the outrageous and impertinent
allegations made against him and requesting a show cause order to the attorneys that have made
them.
With respect to the legal framework for intervention, Prof. Dershowitz agrees with the
general principles stated by this Court in its earlier Order on intervention dated September 26,
2011 (DE 99), including the broad discretion afforded district courts concerning intervention.
However, as is summarized in the paragraphs that follow, this motion for intervention stands
upon dramatically different circumstances than the prior motion, which was denied.
The
proposed Plaintiffs’ and their counsel’s defamatory falsehoods about Prof. Dershowitz are of an
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entirely different order of magnitude, and they have spread around the world.
What makes them doubly troubling is their irrelevancy: although categorically false, the
allegations against Prof. Dershowitz have absolutely nothing to do with whether the United
States government violated its duty to confer with the Plaintiffs prior to entering into the nonprosecution agreement with Jeffrey Epstein, and, if so, what remedies might apply. Because
those are the issues to be adjudicated by the Court in the underlying lawsuit, it is apparent that
the broadside against Prof. Dershowitz was ginned up for reasons having nothing to do with the
merits of this case. Prof. Dershowitz must be given the opportunity to defend himself through
intervention in this action.
I.
The Joinder Motion is nothing more than a vehicle to impugn the reputation of
Prof. Dershowitz, filed with the certain result of stirring up media interest.
The Joinder Motion purports to seek to add two new plaintiffs as parties to this litigation,
but does not even attach a proposed amended complaint in violation of the local rules. See S.D.
Fla. L.R. 15.1 (requiring a party who moves to amend a pleading to attach the original of the
amendment to the motion). Instead, the paper simply proffers various salacious allegations as
quotable tabloid fodder. Specifically naming Prof. Dershowitz, and identifying him as Mr.
Epstein’s counsel, Plaintiffs’ counsel allege that Jane Doe #3 was “required” to have sexual
relations with Prof. Dershowitz “on numerous occasions while she was a minor,” and, in
addition, that Prof. Dershowitz was “an eyewitness to the sexual abuse of many other minors.”
(DE 279 at 4.)
The Motion goes on to state that Prof. Dershowitz was involved in the
negotiation of the non-prosecution agreement for Jeffrey Epstein which “provided protection for
[Prof. Dershowitz] against criminal prosecution in Florida for sexually abusing Jane Doe #3.”
(Id.)
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To the great detriment of Prof. Dershowitz, and as Plaintiffs’ counsel surely anticipated,
the contemptible allegations against Prof. Dershowitz and others have created a media firestorm.
Over the weekend of January 3 and 4, 2015, major media outlets—including the Miami Herald,
the Washington Post, the Wall Street Journal, the New York Times, and the Jerusalem Post—
picked up the story and highlighted the most libelous allegations against Prof. Dershowitz.
Yet, as stated above, the allegations against Prof. Dershowitz are completely irrelevant to
this case. The issue to be determined on the Plaintiffs’ Petition is whether, in violation of the
Crime Victims’ Rights Act, the United States Attorney’s Office breached its obligations to meet
and confer with the Plaintiffs—including proposed plaintiff Jane Doe # 3, who has made the
accusations against Prof. Dershowitz—prior to entering into a non-prosecution agreement with
Jeffrey Epstein on September 24, 2007.
That issue turns on the government’s knowledge of
Jane Doe # 3’s allegation at the time of the agreement, including, for example, whether she was
designated as a witness by the government. What has been levelled against Prof. Dershowitz
simply has nothing to do with any relevant issues in this case. In short, there was no legitimate
purpose for including these extremely harmful allegations in the Joinder Motion.
II.
The allegations made against Prof. Dershowitz are outrageously false.
Besides being wholly irrelevant, the allegations made in the Joinder Motion with respect
to Prof. Dershowitz are categorically false. See Declaration of Alan Dershowitz, attached hereto
as Exhibit A.
In fact, they are absolutely outrageous. Prof. Dershowitz is married and has three children
and two grandchildren. He is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law
School. Prof. Dershowitz, a graduate of Brooklyn College and Yale Law School, joined the
Harvard Law School faculty at age 25 after clerking for Judge David Bazelon and Justice Arthur
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Goldberg. Prof. Dershowitz is, among other things, a civil liberties attorney. During his long and
distinguished career, he has published more than one thousand articles in newspapers, journals
and magazines on a variety of topics. He has published fiction and non-fiction works and law
review articles about criminal and constitutional law. He has received awards from many
institutions and organizations for his work, including the Anti-Defamation League. In his private
legal practice he represents individuals and corporations, and even provides counsel to various
world leaders. Prof. Dershowitz’s reputation, which is sterling, is at the core of his remarkable
career.
III.
Prof. Dershowitz should be allowed to intervene under these circumstances.
It is to protect his reputation for which Prof. Dershowitz seeks to intervene in this action.
He is entitled to do so under these circumstances, both as of right and with the permission of the
Court.
Intervention as of right is governed by Federal Rule of Civil Procedure 24(a)(2). Rule
24(a)(2) requires the Court to allow anyone to intervene who claims an interest relating to the
property or transaction that is the subject of the action, and is so situated that disposing of the
action may as a practical matter impair or impede the movant’s ability to protect its interest,
unless existing parties adequately represent that interest. Among the interests that satisfy these
criteria are injury to reputation. Sackman v. Liggett Grp., Inc., 167 F.R.D. 6, 20-21 (E.D.N.Y.
1996) (citing Penthouse Int'l, Ltd. v. Playboy Enterprises, Inc., 663 F.2d 371, 373, 392 (2d Cir.
1981)). The burden of demonstrating an interest relating to the subject of the action that cannot
be adequately represented by others is minimal. Georgia v. U.S. Army Corps of Engineers, 302
F.3d 1242, 1255 (11th Cir. 2002).
Clearly, Plaintiffs’ and Plaintiffs’ counsel’s accusations of sex with minors and
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conspiracy to violate the law are injurious to Prof. Dershowitz’s reputation—indeed, they
constitute libel per se—such that he has an interest relating to the subject matter of this action. It
is far from certain, however, that the defendant in this action, United States of America, has the
same interest as Prof. Dershowitz in disproving the preposterous allegations that have been made
against him. For example, in defending the suit that Plaintiffs have brought, the United States of
America will not necessarily need to defend against or seek to disprove the allegations that Prof.
Dershowitz had sex with minors in concert with Mr. Epstein. Only Prof. Dershowitz is situated
to protect his reputational interest here.
This Court’s recently-published and fully-considered reasoning in Krauser v. Evolution
Holdings, Inc., 975 F.Supp. 2d 1247 (S.D. Fla. 2013) (finding inventor had standing to challenge
a patent application which denied his contribution, based on inventor’s reputational interest)
supports this notion: “The common law recognized that a man’s reputation was possibly his
most valuable asset, that vindicating that reputation in the face of one who sought to defame it
was of paramount importance, and that such vindication need not unnecessarily punish the
defamer because a judgment in favor of the plaintiff that simply established the falsity of the
defamation—and nothing more—was vindication enough.” Id. at 1260. That is essentially what
Prof. Dershowitz seeks here.
Furthermore, permissive intervention under Rule 24(b) is also appropriate. See Walker v.
Jim Dandy Co., 747 F.2d 1360, 1365 (11th Cir. 1984).
IV.
These facts are distinguishable from those presented by the earlier intervenor
motion filed by Bruce Reinhart.
Prof. Dershowitz acknowledges that this Court earlier denied a motion to intervene by
former Assistant United States Attorney Bruce E. Reinhart in 2011. (See DE 99 at 12-13.) Back
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then, Plaintiffs alleged that Mr. Reinhart gave “at least the improper appearance” of having made
a decision in Mr. Eptsein’s favor in his own self-interest, specifically to obtain “favorable
employment” from Mr. Epstein in the future as an attorney in private practice.
Mr. Reinhart
moved to intervene for purposes of seeking sanctions against Plaintiff for this accusation. (See
DE 79.)
This Court held that intervention for purposes of filing a motion for sanctions was
denied, finding that it “cannot permit anyone slighted by allegations in court pleadings to
intervene and conduct mini-trials to vindicate their reputation. Absent some other concrete
interest in these proceedings, the Court does not believe that the allegations here are
sufficiently harmful to justify permissive intervention.” (DE 99 at 13 (emphasis added).)
Apparently, counsel for Plaintiffs have taken this Court’s order denying intervention as to
Mr. Reinhart to mean that defamatory and unsupportable allegations can be made in court papers
in this action with complete impunity. Counsel for Plaintiffs have scandalously and improperly
published falsehoods, abusing the litigation privilege, as well as this Court’s rulings. But the
docket sheets and courtrooms of the United States District Court for the Southern District of
Florida should not be used as a bulletin board to which irrelevant, baseless, and ill-willed
reputational attacks can be tacked up without consequence.
Moreover, contrary to what Plaintiffs and their counsel appear to think, this situation is
fundamentally distinguishable from that presented by the Reinhart motion, simply by virtue of
the harmfulness of the allegations made. Few accusations, if any, can launch such an immediate
sensation as well as an enduring taint, notwithstanding their utter falsity and the impeccable
reputation of the accused. And, in contrast to the Reinhart motion, which presented a potential
intervenor who had previously had the opportunity to defend his reputation “in this docket” and
before this Court, no such opportunity has yet been afforded Prof. Dershowitz.
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Additionally, unlike Mr. Reinhart, who sought to add the fact-driven dynamics of Rule 11
to this case, Prof. Dershowitz seeks simply to end the potential license for character assassination
created by the continued dwelling of those allegations in this Court’s filings. If allowed to
intervene, Prof. Dershowitz would seek to strike the outrageous allegations based on this Court’s
authority to strike material that is “scandalous, immaterial or redundant.” Asay v. Hallmark
Cards, Inc., 594 F.2d 692, 697 n.2 (8th Cir. 1978) (citing Skolnick v. Hallett, 350 F.2d 861 (7th
Cir. 1975). In fact, the Court has the authority to strike such material on its own. Fed. R. Civ. P.
12(f)(1). Alternatively, if intervention were granted, he would request that the Court grant
intervention for purposes of submitting a request for a show cause order to Plaintiffs’ counsel
with respect to their investigation of and justification for including the allegations against Prof.
Dershowitz in the Joinder Motion. In sum, Prof. Dershowitz submits that the remedy to be
afforded a leading public figure deeply maligned by the under-handed techniques employed by
Plaintiffs’ counsel in this case should not be limited to wounded resignation and public denials.
Intervention is due here.
WHEREFORE Alan M. Dershowitz respectfully requests that the Court enter an order
granting his limited motion to intervene for such purposes as may be appropriate including
submitting a motion to strike the allegations made against him and requesting the issuance of a
show cause order against Plaintiffs’ counsel, and awarding such other relief that the Court deems
just and proper under these unfortunate circumstances.
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Respectfully submitted,
Thomas Scott, Fla. Bar No. 149100
[email protected]
Dadeland Centre II
9150 South Dadeland Boulevard, Suite 1400
Miami, Florida 33156
Telephone:
(305) 350-5300
Facsimile:
(305) 373-2294
-and/s/
Kendall Coffey
Kendall Coffey, Fla. Bar No. 259681
[email protected]
Benjamin H. Brodsky, Fla. Bar No. 73748
[email protected]
2601 South Bayshore Drive, PH1
Miami, Florida 33133
Telephone: (305) 858-2900
Facsimile: (305) 858-5261
Counsel for Prof. Alan M. Dershowitz
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I hereby certify that counsel for the movant has made reasonable efforts to confer with all
parties who may be affected by the relief sought in the motion—including phone calls and emails
on today’s date. Counsel for Plaintiffs have indicated that they do not oppose movant’s
intervention in the case, but that their non-opposition is “limited” and “does not extend to the
merits of any arguments on procedural or substantive issues in the case.” Counsel for Defendant
have not responded to movant’s request for consent to his proposed intervention.
/s/ Kendall Coffey
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I hereby certify that a true and correct copy of the foregoing was served by Notice of
Electronic Filing generated by CM/ECF, on this 5th day of January, 2015, on all counsel or
parties of record on the Service List below.
/s/ Kendall Coffey
SERVICE LIST
Bradley J. Edwards
425 North Andrews Avenue, Suite 2
Fort Lauderdale, Florida 33301
Telephone (954) 524-2820
Facsimile (954) 524-2822
E-mail:
[email protected]
Dexter Lee
A. Marie Villafaña
UNITED STATES ATTORNEY’S OFFICE
500 S. Australian Ave., Suite 400
West Palm Beach, FL 33401
(561) 820-8711
Fax: (561) 820-8777
E-mail:
[email protected]
E-mail:
[email protected]
and
Attorneys for the Government
Paul G. Cassell
Pro Hac Vice
S.J. Quinney College of Law at the
University of Utah
332 S. 1400 E.
Salt Lake City, UT 84112
Telephone: 801-585-5202
Facsimile: 801-585-6833
E-Mail:
[email protected]
Attorneys for Jane Doe #1, 2, 3, and 4
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