Catherine and Richard Snyder's Complaint Allegating Fraud on the USPTO, Constitutional Violations, Abuse of Process and other claims against Greenberg Traurig (GT), several GT attorneys and Diane Von Furstenberg Studios
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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division Richard Snyder, and ) ) Catherine Snyder ) 603 Nash Street ) Herndon, Virginia 20170 ) ) Case No. 1:08cv01270 (GBL-TCB) Plaintiffs ) ) Jury Trial Requested v. ) ) Greenberg Traurig, LLP ) r/a Corporation Services Co. ) 11 S. 12 th Street ) Richmond, Virginia 23218 ) ) Harley Lewin ) Greenberg Traurig, LLP ) 200 Park Avenue ) New York NY 10166 ) ) Stephen J. Wadyka ) Greenberg Traurig, LLP ) 2101 L Street, N.W. ) Suite 1000 ) Washington, DC 20037 ) ) Janet Hajek ) Greenberg Traurig, LLP ) 2101 L Street, N.W. ) Suite 1000 ) Washington, DC 20037 ) ) Diane Von Furstenberg Studio, L.P. ) r/a The Prentice-Hall Corp. System, Inc. ) 2711 Centerville Road, Suite 400 ) Wilmington, Delaware 19808 ) ) Larissa MacFarquhar ) 159 Prospect Place ) Brooklyn, New York 11238 ) ) Advance Publications, Inc., t/a The New Yorker )
Transcript
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division Richard Snyder, and ) ) Catherine Snyder ) 603 Nash Street ) Herndon, Virginia 20170 ) ) Case No. 1:08cv01270 (GBL-TCB) Plaintiffs ) ) Jury Trial Requested
v. ) ) Greenberg Traurig, LLP )
r/a Corporation Services Co. ) 11 S. 12th Street ) Richmond, Virginia 23218 )
) Harley Lewin )
Greenberg Traurig, LLP ) 200 Park Avenue ) New York NY 10166 )
) Stephen J. Wadyka )
Greenberg Traurig, LLP ) 2101 L Street, N.W. ) Suite 1000 ) Washington, DC 20037 )
) Janet Hajek )
Greenberg Traurig, LLP ) 2101 L Street, N.W. ) Suite 1000 ) Washington, DC 20037 )
) Diane Von Furstenberg Studio, L.P. )
r/a The Prentice-Hall Corp. System, Inc. ) 2711 Centerville Road, Suite 400 ) Wilmington, Delaware 19808 )
) Larissa MacFarquhar )
159 Prospect Place ) Brooklyn, New York 11238 )
) Advance Publications, Inc., t/a The New Yorker )
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r/a Managing Partner ) Sabin, Bermant & Gould, LLP ) Four Times Square ) New York, New York, 10036 ) ) Conde Nast, Inc. )
r/a The Corporation Trust Co. ) 1209 Orange Street ) Wilmington, Delaware 19801 )
) Defendants )
FIRST AMENDED COMPLAINT
On December 8, 2006, Defendants entered Plaintiffs’ home under color of a civil
trademark-related search and seizure order.1 During this search and seizure, Defendants
exceeded the scope of the warrant, violating the rights of Plaintiffs. Accordingly, Plaintiffs bring
claims pursuant to 42 U.S.C. § 1983 and 15 U.S.C. § 1116, and other claims under the common
law and the law of Virginia for constitutional violations, abuse of process, trespass, and
conversion and trespass to chattels. Additionally, Plaintiffs bring claims under 15 U.S.C. §§
1119 and 1120 for cancellation of a fraudulent trademark and damages therefrom. In support of
these claims, and upon information and belief, Plaintiffs allege as follows:
JURISDICTION AND VENUE
1. This court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. §1331
as this matter involves a federal question arising under Title 15 of the United States Code and
under 42 U.S.C. §1983. Pendent jurisdiction exists over state claims because they are derive
from the same facts and are related to the subject matter of the federal claims.
2. Venue is proper in this action pursuant to 28 U.S.C. § 1391 in that the Defendants are
present in or transacting business within this district, a substantial part of the events giving rise to
1 The Order, signed December 7, 2006 by Judge Cacheris of this Court, regarding the search and seizure of Plaintiff Catherine Snyder’s home, will be referred to herein as “the order,” “order,” “the warrant,” or “warrant.”
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the claims occurred in this district, and the Defendants directly or indirectly performed acts
within this judicial district in furtherance of the allegations herein and under authority of this
Court.
PARTIES
3. Plaintiff Richard Snyder is the husband of Plaintiff Catherine Snyder, residing now and
at the time of the events alleged herein at 603 Nash Street, Herndon, Virginia, 20170 in Fairfax
County, Virginia.
4. Plaintiff Catherine Snyder is the wife of Plaintiff Richard Snyder, both residing now
and at the time of the events alleged herein at 603 Nash Street, Herndon, Virginia, 20170 in
Fairfax County, Virginia.
5. Defendant Harley Lewin is an attorney at law and a shareholder at the law firm
Greenberg Traurig, LLP. Upon information and belief, Mr. Lewin works and resides in or
around New York, New York. Mr. Lewin came to Virginia for the events which are the subject
of this matter, and was admitted pro hac vice to the United States District Court for the Eastern
District of Virginia in the prior matter before this Court involving Plaintiffs.2
6. Defendant Stephen J. Wadyka is an attorney at law and a shareholder at the law firm
Greenberg Traurig, LLP. Upon information and belief, Mr. Wadyka works in Washington, DC
and resides at 3401 Greenway, Unit 301, Baltimore, Maryland 21218. Mr. Wadyka came to
Virginia for the events which are the subject of this matter, and was admitted pro hac vice to the
United States District Court for the Eastern District of Virginia in the prior matter before this
Court involving Plaintiffs.3
2 Diane von Furstenberg Studio v. Snyder, et al., File No. 1:06cv1356 (JCC) 3 Id.
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7. Defendant Janet Hajek is an attorney at law and an associate at the law firm Greenberg
Traurig, LLP. Upon information and belief, Ms. Hajek works and resides in or around
Washington, DC. Ms. Hajek came to Virginia for the events which are the subject of this matter,
and is a member of the Virginia state bar and the bar of the United States District Court for the
Eastern District of Virginia.
8. Greenberg Traurig, LLP is a law firm with offices across the United States, including in
New York, New York, Washington, DC, and Tysons Corner, Virginia.
9. Upon information and belief, Diane von Furstenberg Studio, L.P., is a Delaware limited
partnership with its principal place of business in New York which hired Greenberg Traurig,
LLP to handle certain trademark matters, including the previous matter in which Plaintiffs were
involved or affected.
10. Upon information and belief, Larissa MacFarquhar is a journalist who was employed
by the New Yorker at the time of the events in this complaint. Mrs. MacFarquhar authored an
article about Mr. Lewin’s trademark practice, and accompanied Defendants Lewin, Wadyka, and
Hajek during the warrant execution at Plaintiffs’ home.
11. Upon information and belief, The New Yorker is the name of a periodical publication,
owned by or a trade name for Advanced Publications, Inc., owned by or a trade name for Conde
Nast Inc., or for a separate business entity or entities. The New Yorker assigned Ms.
MacFarquhar to cover Mr. Lewin and the Greenberg Traurig, LLP home invasion, and published
the article Ms. MacFarquhar wrote about entering the Snyders’ home. Advanced Publications,
Inc. is a New York Corporation with its principal place of business at 950 Fingerboard Road,
Staten Island, New York, 10305.
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12. Upon information and belief, Conde Nast, Inc. is a Delaware corporation with its
principal place of business at 420 Lexington Avenue, New York, New York, 10170 and is the
publisher of the periodical The New Yorker.
PRELIMINARY STATEMENT
13. This is an action under U.S.C. § 1983, with related claims under Bivens v. Six Named
Unknown Agents of the Fed. Bur. of Narcotics, 403 U.S. 388 (1971), Title 15 of the United
States Code, and under Virginia law. Defendants entered Plaintiffs’ home with a civil search and
seizure warrant issued by this Court under the Lanham Act. During the execution of the warrant,
Defendants went well beyond what was authorized by the warrant and violated Plaintiffs’
constitutionally protected rights, particularly by seizing goods not described in the warrant and
by causing a reporter, in her journalistic capacity, to be present during the execution of the
warrant and using the execution of the warrant as an ‘advertising opportunity’ for the lawyers
and law firm involved. Further, the trademark under which the warrant was obtained had been
fraudulently obtained by its holder, and was accordingly void ab initio.
FACTUAL ALLEGATIONS
14. Plaintiffs Richard Snyder and Catherine Snyder have both resided in Fairfax County,
Virginia for more than thirty years and had a stable marriage. They are upstanding members of
their community, and before the prior litigation, they were financially stable, and both had
excellent credit ratings. Mr. Snyder has been working as a software engineer for the last twenty
years, and Mrs. Snyder has been raising their two sons while working in and out of the home.
15. Mrs. Snyder started a legitimate licensed and bonded eBay business in February 2003
so that she could be home with her sons while generating revenue.
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16. Diane Von Furstenberg Studio (“Von Furstenberg”), a women’s fashion designer and
producer of apparel, hired the Greenberg Traurig, LLP law firm and attorneys Harley Lewin,
Stephen Wadyka, and Janet Hayek (collectively, “Law Defendants”) to address certain
trademark matters for Von Furstenberg.
Ex Parte Proceedings Against the Snyders in the Prior Action
17. Near the end of 2006, Law Defendants filed an action on Von Furstenberg’s behalf,
under seal, in this Court against Plaintiff Catherine Snyder, alleging violations of the Lanham act
for selling over the internet allegedly counterfeit goods bearing the Von Furstenberg mark,
requesting a search and seizure order and temporary restraining order at an ex parte hearing, and
representing to this Court that they had thoroughly investigated Catherine Snyder.
18. Richard Snyder was not named in the suit, nor was he mentioned in any way on the
search and seizure order.
19. Law Defendants and Von Furstenberg stated in its request for the search and seizure
order that they had “thoroughly investigated” Catherine Snyder and others. On information and
belief, part of this investigation involved having investigators track down zip codes to see who
had “assets worth going after.”
20. Although Law Defendants and Von Furstenberg represented that they had thoroughly
investigated Catherine Snyder, they made a number of false statements to this Court in their
request for seizure order and TRO.
21. Examples of these false statements which Law Defendants and Von Furstenberg could
readily have verified include allegations that Catherine Snyder operated in a common operation
with individuals alleged to be named Lily Shao and John Auyeung and that Catherine Snyder
operated from various locations in Virginia.
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22. Upon information and belief, Diane von Furstenberg's “thorough[]” investigation of
Catherine Snyder failed to find any specific facts demonstrating that Mrs. Snyder would likely
defy a Court order and destroy evidence and/or move assets if Law Defendants and Diane von
Furstenberg Studio were to proceed in the matter with notice to Mrs. Snyder.
23. Law Defendants and Von Furstenberg represented in their application to this Court that
they would file a protective order regarding their access to the materials to be recovered in the
search and seizure. On information and belief, this protective order was never submitted to this
Court for entry.
24. As provided by law, this Court ordered Law Defendants and Von Furstenberg to post a
cash or corporate security bond in the amount of $20,000 for the execution of the seizure order.
Upon information and belief, Law Defendants and Von Furstenberg did not post this bond during
time between issuance of the warrant and the date of the bond return, at which time this Court
excused Law Defendants from refiling the bond.
25. This Court, upon an ex parte hearing, granted a temporary restraining order against
Plaintiff Catherine Snyder and authorized the U.S. Marshals or other law enforcement officers,
with the assistance of attorneys or agents of Von Furstenberg, to search the residence of
Plaintiffs and seize certain enumerated items.
26. The items described in the seizure order were limited to the following:
a. any and all unauthorized and unlicensed merchandise bearing the Von Furstenberg
marks, as well as the means for making the same;
b. the books and records relating thereto, including but not limited to records and data
contained in electronic format on computers, servers, hard drives, zip drives and
disks;
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c. the containers or vehicles in which the same are held or transported, which
Defendants sell, attempt to sell or hold for sale: and
d. any counterfeit Von Furstenberg product, reproduction, copies or colorable
imitations thereof, including dresses or other items.4
Entry Made to the Snyders’ Home
27. Upon information and belief, on or about the morning of December 8, 2006, Law
Defendants approached the Herndon Police Department for the purpose of obtaining assistance
and an official presence at the entry to the Snyders’ home.
28. Upon information and belief, Wadyka, upon introducing himself to officers of the
Herndon Police Department and for the purpose of inducing those officers to accompany Law
Defendants to Plaintiffs’ house during the execution of the warrant, flashed a badge and
indicated that he was a U.S. law enforcement official.
29. On the morning of December 8, 2006, Law Defendants, accompanied by two members
of the Herndon Police Department and two other individuals who Law Defendants did not
identify at any time to the Snyders during the search, entered Plaintiffs’ home and indicated that
they were present under authorization of a warrant and that compliance with Law Defendants’
directions and requests was required by law. Under the reasonable belief that Law Defendants’
actions had the force of law, the Snyders complied with Law Defendants’ directions and requests
throughout the time Law Defendants were present in the Snyders’ home. The two unidentified
individuals were a forensic technician and the reporter Larissa MacFarquhar. Law Defendants
took charge of the operation, and the police officers, though present, did not actively search or
seize items.
4 Id., Order, docket no. 17 (Dec. 7, 2006).
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30. At the time that Law Defendants and MacFarquhar arrived, Mr. Snyder met this group
at the door. Law Defendants entered the house first before the police officers, engaged in all
substantive discussion with and direction to Plaintiffs, and otherwise entirely directed the search
and seizure, intentionally giving the impression that they were in charge of the search under
color of this Court’s order and state law.
31. Mrs. Snyder was still in bed, and Mr. Snyder requested permission of Lewin to awaken
her and let her dress. Although Lewin permitted Mr. Snyder to awaken Mrs. Snyder, Lewin
insisted, under color of law, that Mr. Snyder keep the bedroom door open so that Lewin could
observe.
32. Upon information and belief, at the time of the home invasion described herein, Lewin
was the subject of research for a future article for the New Yorker. Lewin and the other
attorneys brought with them MacFarquhar, a journalist, to participate in the warrant execution,
and brought MacFarquhar into Plaintiffs’ home without the authorization of the warrant, the
permission of any resident of the Snyders’ household, and without informing the Snyders that
MacFarquhar was not in any way related to the search. MacFarquhar was present for no purpose
other than as a journalist, and did not in any way assist with execution of the warrant.
33. At all times, the search of Plaintiffs’ home was controlled, orchestrated and directed by
defendant Lewin, whose actions, statements, and shouting evidenced a deliberate attempt to
provide a dramatic story for MacFarquhar, who observed the search from within the Snyders’
home.
34. During the course of the warrant execution, Mrs. Snyder approached the front door with
the obvious intent to go outside, which neither the warrant nor the police prohibited. Defendant
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MacFarquhar, who was sitting in front of and blocking the front door, did not move out of the
way, and said to Mrs. Snyder in a menacing manner, “I wouldn’t go outside if I were you.”
Defendants’ Actions Beyond the Authorization of Law or this Court
35. In addition to items authorized by the warrant, Law Defendants, acting on behalf of
Von Furstenberg and under color of law, removed a large number of other items which they were
not authorized to remove and which were self-evidently not within the scope of the warrant.
36. The additional items removed included personal clothing, clothing bearing other brand
names besides Von Furstenberg, and other records including
a. the Snyders’ marriage certificate,
b. the Snyders’ and their sons’ birth certificates,
c. correspondence between Mrs. Snyder and an attorney who had represented her in
an unrelated matter,
d. their sons’ social security cards,
e. mortgage settlement documents,
f. homeowner and automobile insurance policies,
g. Mrs. Snyder’s life insurance policy,
h. medical records relating to Mrs. Snyder and one of their sons,
i. all of Mrs. Snyder’s credit cards and several of Mr. Snyder’s credit cards,
j. tax returns,
k. unopened mail addressed to Mr. Snyder including personal correspondence, tax
documents, correspondence from the boys’ schools, and a time-sensitive vehicle
registration renewal form,
l. a report card from one of their sons,
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m. lists of usernames and passwords for websites including one son’s login for the
Fairfax County Public Schools’ eLearning site,
n. access information for the Snyders’ online banking access,
o. access codes for the Snyders’ voicemail box,
p. pay stubs for Mr. Snyder,
q. stacks of blank personal checks,
r. and social security benefits statements.
37. None of the items listed in paragraph 36 fell within the scope of the seizure order.
38. Law Defendants caused the unopened mail addressed to Mr. Snyder to be opened while
in Law Defendants’ possession subsequent to the seizure.
39. Law Defendants removed Mrs. Snyder’s purse from her office closet and removed
personal credit cards issued to both Catherine Snyder and Richard Snyder from her wallet. Law
Defendants also required the Snyders to give them login access to a computer belonging to Mr.
Snyder’s employer and to a computer which Law Defendants identified as the Snyders’ son’s
computer.
40. While still in the Snyders’ home under color of the search and seizure order, Lewin or
another Law Defendant held out to Mrs. Snyder that she was required to write down for them
login information for additional websites such as eBay and Paypal, and then retained that
information when she did so.
41. Law Defendants left a stack of papers which were required to be served, regarding the
case, in the Snyders’ kitchen. Law Defendants failed to include in this stack the Memorandum
of Law in support of its application for the ex parte seizure order and TRO.
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42. Before leaving the Snyders’ home, Lewin or another Law Defendant, knowing that the
Snyders were not represented by counsel and knowing that Mr. Snyder was not a party to the
action, informed Mr. Snyder that there was a hearing before this Court on December 22, 2006 in
that matter, but that the Snyders need not attend, and encouraged Mr. Snyder to contact Law
Defendants quickly to resolve the matter.
43. Law Defendants were present in the Snyders’ home approximately three hours,
although the Herndon Police officers left after about one hour.
44. On information and belief, Law Defendants took direct control of the seized goods
rather than allow this Court or the U.S. Marshals to maintain them, and made and retained copies
of all papers, regardless of whether they fell within the scope of the order.
45. Upon information and belief, in September 2006, Diane Von Furstenberg, on behalf of
defendant Von Furstenberg, stated in a Wall Street Journal interview it is her belief that “Laws
are created to intimidate people [with the threat of litigation].”
46. Shortly before leaving the Snyder's home on December 8, 2006, Law Defendant Lewin
confronted Mrs. Snyder in her kitchen, telling her: “You're going to have to pay my client some
money.” When Mrs. Snyder tearfully replied that she did not have any money, Lewin
responded “You've been making a good a living off of my client and now its gonna cost ya
lady.”
47. About five months after the home invasion, MacFarquhar and the New Yorker
published a cover article, entitled “Bag Man,” describing details of the search and seizure and
profiling Lewin’s practice. On information and belief, Lewin and Greenberg Traurig used the
publicity of the article authored by MacFarquhar and published by the New Yorker for personal
and business marketing.
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48. The Court’s Order permitted the freezing of accounts held by Catherine Snyder. Law
Defendants, on behalf of Von Furstenberg and under color of federal and state law, went beyond
freezing the accounts of Mrs. Snyder, and directed the freezing of accounts held by Richard
Snyder and/or directed the freezing of the entire contents of accounts held jointly by Catherine
Snyder and Richard Snyder, causing checks written by the Snyders on these improperly frozen
funds to bounce, causing Mr. Snyder to be unable to pay bills including a mortgage payment as
they came due, and causing damage to Mr. and Mrs. Snyder’s credit.
Resolution of the Prior Matter
49. The prior matter ended by partial summary judgment and a bench trial on the issue of
damages. Judgment was entered against Catherine Snyder in the amount of $100,000.
Von Furstenberg’s Fraud on the U.S. Patent and Trademark Office
50. The trademark used by Von Furstenberg as the basis for its alleged trademark
infringement claim and in it's application for an ex parte seizure Order and TRO is Trademark
Reg. No. 2276188 (“The ‘188 Mark”) for the mark “Diane Von Furstenberg”.
51. Von Furstenberg first registered Trademark Reg. No. 2276188 on September 7, 1999.
52. In its application for the ‘188 Mark, Von Furstenberg stated that the mark was currently
in use for “Wearing apparel, namely, ladies dresses', dress suits and pant suits, t-shirts, skirts,
coats; loungewear and sleepwear, namely robes, pajamas, nightgowns and nightshirts; lingerie
and underwear, namely boxer shorts, and slips; women's apparel accessories, namely, hosiery,
belts, shoes, hats and scarves.”
65. On information and belief, Von Furstenberg was not using the mark at that time on any
loungewear and sleepwear, including robes, pajamas, nightgowns and nightshirts; any lingerie or
underwear, including boxer shorts, and slips; or on the women's apparel accessories hosiery,
belts, shoes, hats and scarves.
66. These knowingly incorrect allegations of current use constitute fraud on the Trademark
office as material misstatements made with the intent of inducing the Trademark office to rely on
them and to register the trademark in a manner which was not justified by the facts of the matter.
67. The Trademark office did in fact register Von Furstenberg’s trademark pursuant to the
misrepresentations made by Von Furstenberg.
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68. Von Furstenberg, in its Section 8 and Section 15 combined affidavit for renewal and
incontestability, alleged that the mark had been in use for five years and was in current use on
the items for which the mark was registered.
69. On information and belief, Von Furstenberg had not in the five years after registration
used the mark on and was not at that time using the mark on any loungewear and sleepwear,
including robes, pajamas, nightgowns and nightshirts; any lingerie or underwear, including boxer
shorts, and slips; or on the women's apparel accessories hosiery, belts, shoes, hats and scarves.
70. Von Furstenberg knowingly attempted to mislead the USPTO so as to fraudulently
achieve a registration, renewal, and finding of incontestability.
71. Fraud on the Trademark office is justification for cancellation, ab initio, of the mark
and the award of civil damages to those injured by use of the mark.
72. Catherine Snyder lost and continues to lose income because her business, including
business unrelated to Von Furstenberg goods, was shut down by Diane Von Furstenberg by
securing an injunction, by intimidation, and by freezing or causing the termination of the means
by which she did business, pursuant to an enforcement action brought under this fraudulently
obtained trademark.
73. Richard and Catherine Snyder were damaged by the conduct of Von Furstenberg and
Law Defendants on behalf of Von Furstenberg in their actions in the prior matter regarding the
execution of the warrant. The warrant issued in this matter was only available to Von
Furstenberg because The ‘188 Mark had been registered.
74. The prior matter resulted in a judgment against Catherine Snyder which was only
available to Von Furstenberg because The ‘188 Mark had been registered.
75. The Snyders’ damages are compensable pursuant to 15 U.S.C. § 1120.
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COUNT II – Deprivation of Property in violation of 42 U.S.C. § 1983 and under Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 U.S. 388 (1971)
76. Paragraphs 1-75 are incorporated as though included herein.
77. Law Defendants, while executing a search and seizure pursuant to a warrant issued by
this Court, went beyond the scope of the warrant and seized additional property which was not
authorized to be seized by the warrant nor otherwise justifiable.
78. Law Defendants were acting under color of federal and state law because they
professed to act in the name of the United States government, acted in concert with the Herndon
Police in executing the warrant, and in fact directed and performed the warrant execution,
searching and seizing items themselves. There is a sufficiently close nexus between
governmental action and the challenged action such that the action may fairly be treated as that
of the state itself.
79. While acting under color of state and federal law, Law Defendants deprived the
Snyders of a constitutional right by depriving the Snyders of property without due process of
law.
80. This deprivation of property was caused by the abuse of a right or rule of conduct
created by the United States government and effected by private parties acting together with or
having obtained significant aid from state and federal officials or engaging in conduct otherwise
chargeable to the Commonwealth or the United States. By invoking the aid of this Court in the
issuing of the warrant and by invoking the aid of the Herndon Police in the execution of the
warrant, Law Defendants were willful participants in joint activity with the Commonwealth and
with the United States or their agents and were authorized to perform governmental tasks as
government agents or actors.
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81. This deprivation of property was done with malice, in bad faith, and with reckless and
callous indifference to the rights of the Snyders.
82. Defendants caused damages to the Snyders by this deprivation of property, including
but not limited to consequential damages from removal of important records and freezing of
bank accounts, humiliation and emotional distress, and the costs, including attorneys fees, of
bringing this action.
COUNT III – Deprivation of privacy and sanctity of home pursuant to 42 U.S.C. § 1983 and under Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 U.S. 388
(1971)
83. Paragraphs 1-82 are incorporated as though included herein.
84. Law Defendants and Von Furstenberg caused the journalist MacFarquhar, who was not
acting in any capacity to assist in the search or seizure, to enter the Snyders’ home while acting
to execute the warrant issued by this Court.
85. Although this Court’s order permitted attorneys or agents of Von Furstenberg to
accompany and assist law enforcement officers in the execution of the warrant, the order did not
permit, nor would the Fourth Amendment to the United States Constitution permit, a journalist to
observe the entry into a private home under a search and seizure warrant under the circumstances
of this case.
86. Law Defendants and Von Furstenberg were acting under color of state and federal law
because they professed to act in the name of the United States government, implied the same,
acted in concert with the Herndon police in executing the warrant issued by this Court, and in
fact directed the execution of the warrant themselves. There is a sufficiently close nexus
between governmental action and the challenged action such that the action may fairly be treated
as that of the state itself.
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87. While acting under color of state and federal law, Law Defendants and Von
Furstenberg deprived the Snyders of their constitutional right by causing MacFarquhar to enter
their home during a search and seizure in violation of the 4th Amendment.
88. This deprivation was caused by the abuse of a right or rule of conduct created by the
United States government and effected by private parties acting together with or having obtained
significant aid from state and federal officials or engaging in conduct otherwise chargeable to the
Commonwealth or the United States. By invoking the aid of this Court in the issuing of the
warrant and by invoking the aid of the Herndon Police in the execution of the warrant, Law
Defendants were willful participants in joint activity with the State and with the United States or
their agents and were authorized to perform government tasks as government agents or actors.
89. This deprivation was done with malice, in bad faith, and with reckless and callous
indifference to the rights of the Snyders.
90. Defendants caused damages to the Snyders, including but not limited to humiliation and
emotional distress and the costs, including attorney’s fees, of bringing this action.
COUNT IV – Abuse of Trademark Act authority (§ 1116)
91. Paragraphs 1-90 are incorporated as though included herein.
92. Law Defendants, while executing a search and seizure pursuant to a warrant issued by
this Court, went well beyond the scope of the warrant and seized additional property which was
not authorized to be seized by the warrant nor otherwise justifiable.
93. These actions constitute a wrongful seizure under 15 U.S.C. § 1116, entitling the
Snyders to relief.
94. The wrongful seizure was made with malice, in bad faith, and with reckless and callous
indifference to the rights of the Snyders.
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95. The Snyders were damaged by this wrongful seizure, including but not limited to
consequential damages from removal of important records and papers and freezing of bank
accounts, humiliation and emotional distress, and the costs, including attorneys fees, of bringing
this action.
COUNT V – Abuse of Process
96. Paragraphs 1-95 are incorporated as though included herein.
97. Law Defendants, while executing the extraordinary remedy of a civil search and seizure
order, went well beyond the scope of the order and seized additional property which was not
authorized to be seized by the warrant nor otherwise justifiable.
98. Law Defendants used legal process to gain access to the Snyders’ house and belongings
and to seize belongings which they would not otherwise have been able to seize.
99. Upon information and belief, Law Defendants had at least one ulterior purpose in using
this process, namely to show off for reporter MacFarquhar in the hopes of obtaining free
publicity for themselves and their law firm.
100. The seizing of property not authorized to be seized by the warrant constitutes an act in
the use of the process not proper in the regular prosecution of the proceedings.
101. The abuse of process was done with malice, in bad faith, and with reckless and callous
indifference to the rights of the Snyders.
102. The Snyders were damaged by this abuse of process, including but not limited to
consequential damages from removal of important records and papers and freezing of bank
accounts and humiliation and emotional distress.
COUNT VI – Conversion and/or Trespass to Chattels
103. Paragraphs 1-102 are incorporated as though included herein.
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104. The Snyders owned property consisting of the items listed in paragraph 36 of this
Complaint.
105. Law Defendants removed this property from the Snyders’ control and possession.
106. This property was not authorized to be seized under the warrant, and accordingly,
defendants wrongfully took control of this property and deprived the Snyders of control or
possession of this property.
107. Richard Snyder was joint owner of two bank accounts and sole owner of a third bank
account in which he maintained liquid property for payment of bills and ordinary expenses.
108. Law Defendants and Von Furstenberg attached the full amount contained in these
accounts.
109. This attachment of Richard Snyder's assets was not authorized by this Court’s asset
freeze and accordingly, defendants wrongfully took control of this property and deprived
Richard Snyder of control or possession of this property.
110. The conversion and/or trespass to chattels was done with malice, in bad faith, and with
reckless and callous indifference to the rights of the Snyders.
111. The Snyders were damaged by Defendants’ actions, including economic and emotional
damages to Richard Snyder and to Catherine Snyder caused by loss of liquidity.
COUNT VII - Trespass
112. Paragraphs 1-111 are incorporated as though included herein.
113. The Snyders lawfully hold the real property located at 603 Nash Street, Herndon,
Virginia.
114. MacFarquhar accompanied Law Defendants when they entered the Snyders’ home
under color of law, and knew or should have known that the Snyders reasonably believed that
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everyone present was acting under the apparent authority of the Commonwealth of Virginia and
of the United States.
115. Law Defendants knew of and had procured MacFarquhar’s presence at the Snyders’
house, and caused MacFarquhar to enter the Snyders’ house.
116. Although this Court’s order permitted attorneys or agents of Von Furstenberg to
accompany and assist law enforcement officers in the execution of the warrant, the order did not
permit, nor would the Fourth Amendment to the United States Constitution permit, a journalist to
enter into a private home under a search and seizure warrant.
117. MacFarquhar entered the Snyders’ home without any right, lawful authority, or express
or implied invitation.
118. Law Defendants caused MacFarquhar to enter the Snyders’ home without any right,
lawful authority, or express or implied invitation.
119. MacFarquhar’s and Law Defendants’ trespass on the Snyders’ property was done with
malice, in bad faith, and with intentional disregard for and with reckless and callous indifference
to the property rights of the Snyders and the sanctity of their home.
120. MacFarquhar entered the Snyders’ home while acting within the scope of her
employment with The New Yorker and/or Conde Nash, Inc.
121. The New Yorker and Conde Nash, Inc. are liable for damages in this case, as the
damages were caused by their employee Mrs. MacFarquhar’s trespass while she was acting
within the scope of her employment.
122. The Snyders were damaged by Defendants’ actions.
COUNT VIII – False Imprisonment
123. Paragraphs 1-122 are incorporated as though included herein.
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124. MacFarquhar was present when Law Defendants entered the Snyders’ home under
color of law, and knew or should have known that the Snyders reasonably believed that everyone
present was acting under the apparent authority of the Commonwealth of Virginia and of the
United States.
125. MacFarquhar, knowing this, blocked Mrs. Snyder’s access to the front door when Mrs.
Snyder attempted to go outside and advised her, “I wouldn’t go outside if I were you.”
126. This constitutes an intentional restriction of Mrs. Snyder’s freedom of movement,
without legal right, by use of acts and use of words to which Mrs. Snyder reasonably believed
she must submit.
127. MacFarquhar’s false imprisonment of Mrs. Snyder was done with malice, in bad faith,
and with intentional disregard for and with reckless and callous indifference to the rights of Mrs.
Snyder.
128. Mrs. Snyder was damaged by MacFarquhar’s false imprisonment.
PRAYER FOR RELIEF
Wherefore, Plaintiffs Richard Snyder and Catherine Snyder respectfully pray this Court
grant relief as follows:
Cancellation of the Trademark, reg. no. 2276188, for “DIANE VON FURSTENBERG”.
For damages, including direct damages, consequential damages, and humiliation and
emotional distress under each count, $500,000 against Defendants jointly and severally.
For punitive damages, $350,000 against Defendants jointly and severally.
Attorney fees under 42 U.S.C. § 1988, and 15 U.S.C. § 1116, costs, and such other relief
as this Court shall deem proper.
Plaintiffs request a jury trial for the hearing of this matter.
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Respectfully submitted, Richard Snyder and Catherine Snyder, By Counsel
_______/s/__________________ Jonathan A. Nelson Virginia bar number 75247 Attorney for Richard and Catherine Snyder. CUCCINELLI & DAY, PLLC 10560 Main Street, Suite 218 Fairfax, Virginia 22030 Phone: (703) 268-5600 Fax: (703) 268-5602 [email protected] Kenneth T. Cuccinelli, II Virginia bar number 39490 Attorney for Richard and Catherine Snyder. CUCCINELLI & DAY, PLLC 10560 Main Street, Suite 218 Fairfax, Virginia 22030 Phone: (703) 268-5600 Fax: (703) 268-5602 [email protected]
