Jane Doe Memorandum Opposing Dismissal of Case v. Deutsche Bank

Case 1:22-cv-10018-JSR Document 48 Filed 02/21/23 Page 1 of 46
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
Jane Doe 1, individually and on behalf of

all others similarly situated,
Case No. 1:22-CV-10018 (JSR)
Plaintiff,
v.
Deutsche Bank Akteingesellschaft, et. al.,
Defendants.
Jane Doe 1, individually and on behalf of

all others similarly situated,
Case No. 1:22-CV-10019 (JSR)
Plaintiff,
v.
JPMorgan Chase Bank, N.A.,
Defendant.
PLAINTIFF JANE DOE 1’S MEMORANDUM OF LAW IN OPPOSITION TO MOTION

TO DISMISS OF DEFENDANTS DEUTSCHE BANK AKTIENGESELLSCHAFT,
DEUTSCHE BANK AG NEW YORK BRANCH, AND DEUTSCHE BANK TRUST
COMPANY AMERICAS
TABLE OF CONTENTS
PRELIMINARY STATEMENT ................................................................................................. 1
FACTUAL OVERVIEW.............................................................................................................. 2
ARGUMENT ................................................................................................................................. 4
I. DOE’S SETTLEMENT AGREEMENT DOES NOT WARRANT

DISMISSAL....................................................................................................................... 4
A. The Court Cannot Consider the Settlement Agreement at this Stage. .......................... 4
B. Deutsche Bank Is Not a Released Party Under the Terms of the Agreement............... 6
II. DOE HAS PROPERLY PLED SIX TVPA CLAIMS (COUNTS I-VI). ..................... 10
A. The FAC States a Claim for TVPA Beneficiary Liability (Count I). ......................... 10
1. Deutsche Bank Participated in the Sex-Trafficking Venture. ......................... 11
2. Deutsche Bank Benefited from its Participation in the Sex-Trafficking

Venture............................................................................................................ 14
3. Deutsche Bank Both Knew and Should Have Known About Epstein’s
Sex-Trafficking Venture. ................................................................................ 15
a. Knowledge that Doe Was a Sex-Trafficking Victim .......................... 15
b. Knowledge of a Specific Sex-Trafficking Venture ............................ 18
B. The FAC States a Claim for TVPA Perpetrator Liability (Count II).......................... 20
C. The FAC States TVPA Claims for Aiding and Abetting, Conspiracy, Attempt,
and Obstruction (Counts III–VI) ................................................................................. 21
1. Count III Properly Alleges Aiding and Abetting Liability. ............................ 21
2. Count IV Properly Alleges Conspiracy Liability............................................ 22
3. Count V Properly Alleges Attempt Liability. ................................................. 24
4. Count VI Properly Alleges Obstruction Liability. .......................................... 25
D. The FAC States RICO and RICO Conspiracy Claims (Counts VII–VIII). ................ 26
1. The FAC Alleges Predicate Offenses. ............................................................ 26
i
2. The FAC Alleges Participation in the Conduct of the Enterprise. .................. 27
3. The FAC Alleges RICO Injury. ...................................................................... 28
4. The FAC Alleges RICO Causation. ................................................................ 29
5. The FAC Alleges RICO Conspiracy............................................................... 29
III. DOE HAS PROPERLY PLED HER TORT CLAIMS (COUNTS IX-XII). ............. 30
A. The FAC States a Claim for Aiding and Abetting Battery (Count IX). ..................... 30
B. The FAC States a Claim for Intentional Infliction of Emotional Distress

(Count X). ................................................................................................................... 31
C. The FAC States Two Claims for Negligence (Count XI–XII). .................................. 33
CONCLUSION ........................................................................................................................... 35
ii
TABLE OF AUTHORITIES
Page(s)
Cases
A.B. v. Marriott Int’l, Inc.,

455 F. Supp. 3d 171 (E.D. Pa. 2020) ............................................................................ 10, 12, 16
Alix v. McKinsey & Co.,

23 F.4th 196 (2d Cir. 2022). ...................................................................................................... 29
Allstate Ins. Co. v. Afanasyev,

2016 WL 1156769 (E.D.N.Y. Feb. 11, 2016) ........................................................................... 27
Ardolf v. Weber,
332 F.R.D. 467 (S.D.N.Y. 2019)............................................................................................... 10
Ashcroft v. Iqbal,
556 U.S. 662 (2009) .................................................................................................................... 4
B.M. v. Wyndham Hotels & Resorts, Inc.,

2020 WL 4368214 (N.D. Cal. July 30,2020) ............................................................................ 19
BCS Servs., Inc. v. Heartwood 88, LLC,

637 F.3d 750 (7th Cir. 2011) ..................................................................................................... 29
Bonner v. Guccione,
916 F. Supp. 271 (S.D.N.Y. 1996) ............................................................................................ 32
Brown v. Thompson,
374 F.3d 253 (4th Cir. 2004) ..................................................................................................... 23
C.S. v. Wyndham Hotels & Resorts, Inc.,

538 F. Supp. 3d 1284 (M.D. Fla. 2021) .................................................................................... 11
Canosa v. Ziff,
2019 WL 498865 (S.D.N.Y. Jan. 28, 2019) ....................................................................... passim
Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A.,

511 U.S. 164 (1994) .................................................................................................................. 21
Chambers v. Time Warner, Inc.,

282 F.3d 147 (2d Cir. 2002) ........................................................................................................ 4
Childers v. New York & Presbyterian Hosp.,

36 F. Supp. 3d 292 (S.D.N.Y. 2014) ........................................................................................... 5
iii
Collins v. Willcox, Inc.,

600 N.Y.S.2d 884 (Sup. Ct. 1992) ............................................................................................ 32
David v. Weinstein Co. LLC,

431 F. Supp. 3d 290 (S.D.N.Y. 2019) ....................................................................................... 33
Dubai Islamic Bank v. Citibank, N.A.,

256 F. Supp. 2d 158 (S.D.N.Y. 2003) ....................................................................................... 27
E.S. v. Best W. Int’l, Inc.,

510 F. Supp. 3d 420 (N.D. Tex. 2021) ...................................................................................... 19
Elmaliach v. Bank of China Ltd.,

110 A.D.3d 192 (N.Y. App. Div. 2013) .................................................................................... 34
Eskridge v. Diocese of Brooklyn,

210 A.D.3d 1056 (N.Y. App. Div. 2022) .................................................................................. 32
Fleites v. MindGeek S.A.R.L.,

2022 WL 4456077 (C.D. Cal. July 29, 2022) ..................................................................... 22, 23
Ford v. Grand Union Co.,

197 N.E. 266 (N.Y. 1935) ................................................................................................... 33, 34
G.G. v. Salesforce.com, Inc.,

603 F. Supp. 3d 626 (N.D. Ill. 2022) ........................................................................................ 14
Gerber Fin., Inc. v. Volume Snacks Inc.,

2021 WL 3038780 (S.D.N.Y. July 14, 2021) ............................................................................. 5
Giuffre v. Prince Andrew,

579 F. Supp. 3d 429 (S.D.N.Y. 2022) ................................................................................... 8, 32
H.H. v. G6 Hosp., LLC,

2019 WL 6682152 (S.D. Ohio Dec. 6, 2019) ............................................................... 12, 14, 15
In re Barnet,
737 F.3d 238 (2d Cir. 2013) ...................................................................................................... 21
In re Corp. Res. Servs., Inc.,

849 F. App’x 320 (2d Cir. 2021) ................................................................................................. 9
In re Refco Inc. Sec. Litig.,

2012 WL 12906289 (S.D.N.Y. Aug. 10, 2012) .......................................................................... 5
In re Skat Tax Refund Scheme Litig.,

356 F. Supp. 3d 300 (S.D.N.Y. 2019) ....................................................................................... 32
iv
In re Stock Exchanges Options Trading Antitrust Litig.,

317 F.3d 134 (2d Cir. 2003) ........................................................................................................ 5
In re World Trade Ctr. Lower Manhattan Disaster Site Litig.,

828 F. App’x 734 (2d Cir. 2020) ................................................................................................. 6
J.C. v. I Shri Khodiyar, LLC,

2022 WL 4482736 (N.D. Ga. Aug. 29, 2022) ........................................................................... 12
J.L. v. Best W. Int’l, Inc.,

521 F. Supp. 3d 1048 (D. Colo. 2021) ...................................................................................... 11
Johnson v. U.S. Dep’t of Hous. & Urb. Dev.,

911 F.2d 1302 (8th Cir. 1990) ................................................................................................... 23
JSC Foreign Econ. Ass’n Technostroyexport v. Weiss,

2007 WL 1159637 (S.D.N.Y. Apr. 18, 2007) ........................................................................... 27
Kashef v. BNP Paribas S.A.,

2021 WL 603290 (S.D.N.Y. Feb. 16, 2021) ............................................................................. 31
Kashef v. BNP Paribas S.A.,

925 F.3d 53 (2d Cir. 2019) .......................................................................................................... 4
Keady v. J.P. Morgan Chase & Co.,

2008 WL 6384 (S.D.N.Y. Mar. 3,2008) ..................................................................................... 5
LaSalle Nat’l Bank v. Ernst & Young LLP,

285 A.D.2d 101 (N.Y.App. Div. 2001) ............................................................................... 6, 7, 9
Lateral Recovery, LLC v. Cap. Merch. Servs., LLC,

2022 WL 4815615 (S.D.N.Y. Sept. 30, 2022) ............................................................................ 5
Lawson v. Rubin,
2018 WL 2012869 (E.D.N.Y. Apr. 29, 2018) ..................................................................... 19, 20
Licci v. Am. Exp. Bank Ltd.,

704 F. Supp. 2d 403 (S.D.N.Y. 2010) ....................................................................................... 34
Lundstrom v. Choice Hotels Int’l, Inc.,

2021 WL 5579117 (D. Colo. Nov. 30, 2021) ........................................................................... 19
M.A. v. Wyndham Hotels & Resorts, Inc.,

425 F. Supp. 3d 959 (S.D. Ohio 2019) .......................................................................... 12, 17, 30
Matvejs v. Martin County Sheriff’s Office,

2006 WL 3755202 (S.D. Fla. 2006) .......................................................................................... 32
v
Maurizi v. Callaghan,
2022 WL 1446500 (W.D.N.Y. Feb. 25, 2022).......................................................................... 31
Midwest Feeders, Inc. v. Bank of Franklin,

886 F.3d 507 (5th Cir. 2018) ..................................................................................................... 35
Nat’l Asbestos Workers Med. Fund v. Philip Morris, Inc.,

74 F. Supp. 2d 213 (E.D.N.Y. 1999) ......................................................................................... 28
Noble v. Weinstein,
335 F. Supp. 3d 504 (S.D.N.Y. 2018) ........................................................................... 13, 14, 21
Norsoph v. Riverside Resort & Casino, Inc.,

2020 WL 641223 (D. Nev. Feb. 11, 2020) ............................................................................... 23
Old Crompond Rd., LLC v. Cnty. of Westchester,

201 A.D.3d 806 (N.Y. App. Div. 2022) ...................................................................................... 7
Oppenheimer & Co. v. Trans Energy, Inc.,

946 F. Supp. 2d 343 (S.D.N.Y. 2013) ......................................................................................... 9
Paguirigan v. Prompt Nursing Emp. Agency LLC,

286 F. Supp. 3d 430 (E.D.N.Y. 2017) ....................................................................................... 24
Picard v. Kohn,
907 F. Supp. 2d 392 (S.D.N.Y. 2012) ....................................................................................... 28
Pinkerton v. United States,

328 U.S. 640 (1946) .................................................................................................................. 24
Potomac Elec. Power Co. v. Elec. Motor and Supply, Inc.,

262 F.3d 260 (4th Cir. 2001) ..................................................................................................... 29
Ratha v. Phatthana Seafood Co.,

35 F.4th 1159 (9th Cir. 2022).................................................................................................... 24
Ricchio v. McLean,
853 F.3d 553 (1st Cir. 2017) ............................................................................................... 12, 24
Roche Diagnostics Corp. v. Priority Healthcare Corp.,

407 F. Supp. 3d 1216 (N.D. Ala. 2019) .................................................................................... 30
Rodland v. Judlau Contracting, Inc.,

844 F. Supp. 2d 359 (S.D.N.Y. 2012) ....................................................................................... 34
S.J. v. Choice Hotels Int’l, Inc.,

473 F. Supp. 3d 147 (E.D.N.Y. 2020) ..................................................................... 10, 11, 16, 17
vi
S.Y. v. Best Western Int’l, Inc.,

2021 WL 2315073 (M.D. Fla. June 7, 2021) ............................................................................ 12
S.Y. v. Naples Hotel Co.,

476 F. Supp. 3d 1251 (M.D. Fla. 2020) .................................................................................... 11
Salinas v. United States,

522 U.S. 52 (1997) .................................................................................................................... 30
Scollo ex rel. Scollo v. Nunez,

847 N.Y.S.2d 899 (Sup. Ct. 2007) ...................................................................................... 30, 31
Scurry v. New York City Hous. Auth.,

193 A.D.3d 1 (N.Y. App. Div. 2021) ........................................................................................ 35
Shea v. Cornell Univ.,

192 A.D.2d 857 (N.Y. App. Div. 1993) .................................................................................... 31
Solis v. 666 Fifth Assocs. LLC,

2021 WL 5998416 (S.D.N.Y. Dec. 20, 2021) ............................................................................. 6
Staehr v. Hartford Fin. Servs. Grp., Inc.,

547 F.3d 406 (2d Cir. 2008) ........................................................................................................ 5
Stagl v. Delta Airlines, Inc.,

52 F.3d 463 (2d Cir. 1995) ........................................................................................................ 33
Turner v. Manhattan Bowery Mgmt. Corp.,

28 N.Y.S.3d 651 (Sup. Ct. 2015) .............................................................................................. 32
U.S. Bank Nat’l Ass’n v. GreenPoint Mortg. Funding, Inc.,

105 A.D.3d 639 (N.Y. App. Div. 2013) ...................................................................................... 6
United States v. Afyare,

632 F. App’x 272 (6th Cir. 2016).............................................................................................. 16
United States v. Alonso,

740 F.2d 862 (11th Cir. 1984) ................................................................................................... 30
United States v. Gershman,

31 F.4th 80 (2d Cir. 2022) ......................................................................................................... 24
United States v. Haggard,

41 F.3d 1320 (9th Cir. 1994) ..................................................................................................... 25
United States v. Hoover,

175 F.3d 564 (7th Cir. 1999) ..................................................................................................... 25
vii
United States v. Space Hunters, Inc.,

429 F.3d 416 (2d Cir. 2005) ........................................................................................................ 4
United States v. The Boeing Co.,

2022 WL 13829875 (S.D. Tex. Oct. 21, 2022) ......................................................................... 25
Statutes
18 U.S.C. § 1591 .................................................................................................................... passim
18 U.S.C. § 1594 ........................................................................................................................... 22
18 U.S.C. § 1595 ......................................................................................................... 21, 22, 23, 24
18 U.S.C § 1961 ............................................................................................................................ 26
18 U.S.C. § 1962 ..................................................................................................................... 26, 27
18 U.S.C. § 1964 ........................................................................................................................... 26
18 U.S.C. § 2 ................................................................................................................................. 22
18 U.S.C. §§ 1581–97 ............................................................................................................. 21, 26
Abolish Trafficking Reauthorization Act of 2022,

P.L. 117-347, 136 Stat. 6199 (2023) ......................................................................................... 23
Trafficking Victims’ Protection Act of 2000,

P.L.106-386, 114 Stat. 1466 (2000) ............................................................................................ 1
Rules
Fed. R. Civ. P. 8(d)(2)................................................................................................................... 32
Other Authorities
Restatement (Third) of Torts: Phys. & Emot. Harm § 7 (2010) ................................................... 33
viii
Plaintiff Jane Doe 1 (“Doe”) submits this memorandum of law in opposition to Defendants
Deutsche Bank Aktiengeselleschaft, Deutsche Bank AG New York Branch, and Deutsche Bank
Trust Companies America’s (“Deutsche Bank”) Motion to Dismiss (“MTD”) her First Amended
Complaint (“FAC”).
PRELIMINARY STATEMENT
Jeffrey Epstein would not have been able to commit the horrific crimes the world has come
to know without constant access to cash flowing from a bank willing to ignore the law and help
conceal Epstein’s conduct, all just to make a significant profit. Up until Epstein’s death, Deutsche
Bank was that bank. In her complaint, on behalf of herself and a class of Epstein victims, Doe has
alleged that Deutsche Bank aided and abetted Epstein’s sex-trafficking venture. She has also
alleged that Deutsche Bank knowingly benefitted from participating in the sex-trafficking venture,
in violation of the Trafficking Victims’ Protection Act of 2000 (“TVPA”).
Deutsche Bank’s motion to dismiss attempts to escape liability for its active participation
in Epstein’s sex trafficking in two primary ways. First, it tries to hide behind a release in Doe’s
2022 settlement agreement with Epstein’s estate, which by its own terms was never intended to
protect a bank or to cover Deutsche Bank’s conduct. Second, despite the overwhelming and
specific allegations to the contrary, Deutsche Bank insists that it was not involved in the sex
trafficking and (incredibly) contends that it did not know that Epstein—a convicted pedophile who
was constantly withdrawing large sums of cash and facing public scrutiny for paying children for
massages—was a trafficker at all. Deutsche Bank’s arguments willfully ignore the serious,
specific, and well-pled allegations in the FAC in an effort to paint itself as an innocent bystander
to Epstein’s conduct. The reality is that Deutsche Bank did not only participate in the trafficking—
it was essential to Epstein’s scheme and is one of the primary reasons he was able to continue
1
harming young girls all over the world for decades. The Court should reject Deutsche Bank’s
efforts to escape liability for its conduct at this early stage in the litigation given the detailed factual
allegations in the FAC, and should deny Deutsche Bank’s motion in its entirety.
FACTUAL OVERVIEW
Before Jeffrey Epstein became Deutsche Bank’s client in 2013, he was already well known
as a registered sex offender who spent his day-to-day life sexually abusing young females and
recruiting others. FAC ¶ 24. From its inception until Epstein’s 2019 arrest for sex trafficking,
Epstein’s sex-trafficking venture operated with the purpose of luring young women and girls into
a position where Epstein and his co-conspirators could coerce them to engage in commercial sex
acts and commit sexual offenses against them. Id. ¶ 29. Epstein maintained his sex-trafficking
venture and conspiracy with the assistance of other influential individuals and entities who knew
he was trafficking young girls, yet supported his operation to obtain favors from Epstein. Id. ¶ 31.
Epstein’s sex-trafficking venture and conspiracy was not possible without the assistance
and knowing complicity of a banking institution to provide his operation with not only the means
to conduct sex trafficking but also the appearance of legitimacy, ensuring its continued operation
without fear of being reported to law enforcement or being arrested. Id. ¶ 32. From on or about
August 19, 2013, through 2019, Deutsche Bank was that bank. Deutsche Bank knowingly and
intentionally participated in Epstein’s sex-trafficking venture, conspiracy, and racketeering
activity by (among other things) providing the financial underpinnings for the venture. Id. ¶ 154.
After Deutsche Bank joined the venture, it became aware that Epstein’s venture had been
ongoing for many years and ratified the conspiracy’s earlier conduct and crimes. Id. Deutsche
Bank enabled Epstein to have reliable access to resources—including cash—to recruit, solicit,
entice, harbor, obtain, provide, and transport young women and girls (including Doe) to cause
2
them to engage in commercial sex acts. Id. ¶ 155. And Deutsche Bank financially benefitted by
earning millions of dollars from its participation in the Epstein-sex-trafficking venture. Id. ¶ 164.
When considering whether to participate in the sex-trafficking venture, Deutsche Bank estimated
that it would earn between $2,000,000 to $4,000,000 annually from serving as Epstein’s banker.
Id. ¶ 163. Faced with the choice between profiting from Epstein’s sex-trafficking venture or
following the law, Deutsche Bank intentionally chose to profit. Id. ¶ 165.
Deutsche Bank’s intentional and outrageous participation in Epstein’s sex-trafficking
venture was not a “one off.” Id. ¶ 288. To the contrary, its deliberate participation fits within
Deutsche Bank’s pattern and practice of profiting by undertaking illegal “high risk, high reward”
clients. Id. (citing Court’s prior opinion in related case finding plausible allegations that Deutsche
Bank executives “routinely overruled compliance staff so that the Bank’s wealth management
business could commence or continue relationships with high-risk, ultra-rich clients, such as
Russian oligarchs, the convicted sex trafficker Jeffrey Epstein, founders of terrorist organizations,
persons associated with Mexican drug cartels, and people suspected of financing terrorist
organizations”). As it did with its Epstein relationship, Deutsche Bank intentionally planned to
profit from being the banker for individuals and organizations that other banks knew they could
not lawfully handle. Id. ¶ 299. For Deutsche Bank, this “high risk, high reward” approach ensured
that it would earn greater profits than it would if it were complying with the law. Id.
From 2003 through 2018, and during Deutsche Bank’s relationship with Epstein, Epstein
abused Doe and caused her to engage in commercial sex acts. Id. ¶¶ 133–36. Epstein used Deutsche
Bank to withdraw large sums of cash to pay Doe, and forced Doe to open an account with Deutsche
Bank. Id. ¶¶ 155, 158, 169, 218.
3
ARGUMENT
The Court should deny Deutsche Bank’s motion to dismiss Doe’s claims. “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face . . . . A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks omitted). The Court must “accept[] all factual allegations in the complaint as true and draw[]
all reasonable inferences in the plaintiff’s favor.” Kashef v. BNP Paribas S.A., 925 F.3d 53, 58 (2d
Cir. 2019). Drawing all reasonable inferences in Doe’s favor, Deutsche Bank has failed to
demonstrate that Doe cannot state a plausible claim.
I. DOE’S SETTLEMENT AGREEMENT DOES NOT WARRANT DISMISSAL.
Deutsche Bank’s attempt to hide behind a release in a settlement agreement from a different
case, Dkt. 45-1 (“Settlement Agreement” or “Agreement”), fails for several reasons. First, the
Agreement cannot be considered at the motion-to-dismiss stage. Second, the plain language of the
Agreement is unambiguous and makes clear that Deutsche Bank was not an intended releasee.
A. The Court Cannot Consider the Settlement Agreement at this Stage.
The Settlement Agreement is not mentioned, described, or referenced in the FAC, and for
purposes of a Rule 12(b)(6) motion, the Court may only consider a “written instrument attached
to [the complaint] as an exhibit or any statements or documents incorporated in it by reference” as
well as any documents “integral” to the complaint, i.e., “where the complaint relies heavily upon
[the document’s] terms and effects.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152–53 (2d
Cir. 2002). Because the invocation of the Agreement’s release raises an affirmative defense, the
Court may only grant a motion to dismiss if it is “beyond doubt that the plaintiff can prove no set
of facts in support of [her] claim that would entitle [her] to relief.” United States v. Space Hunters,
4
Inc., 429 F.3d 416, 426 (2d Cir. 2005) (internal quotation marks omitted); see also Staehr v.
Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 425 (2d Cir. 2008) (“[A] defendant may raise an
affirmative defense in a pre-answer Rule 12(b)(6) motion [only] if the defense appears on the face
of the complaint.”). Here, Deutsche Bank asks the Court not only to consider a document not
mentioned in the FAC at all, but also to interpret the terms of that document in its favor without
submitting any evidence supporting its interpretation. Such is inappropriate at this stage.1
To have the Court consider documents outside the pleadings, Deutsche Bank asserts that
its release argument is a matter of subject-matter jurisdiction under Rule 12(b)(1). MTD at 7. But
Deutsche Bank’s release defense is not jurisdictional—it is well-settled that the invocation of a
release is an affirmative defense that can be waived. See Lateral Recovery, LLC v. Cap. Merch.
Servs., LLC, 2022 WL 4815615, at *27 (S.D.N.Y. Sept. 30, 2022) (explaining that release is an
affirmative defense and holding that it could not consider settlement agreement on Rule 12(b)(6)
motion). Accordingly, the release defense is not an issue of subject-matter jurisdiction. See, e.g.,
In re Stock Exchanges Options Trading Antitrust Litig., 317 F.3d 134, 151 (2d Cir. 2003)
(“Affirmative defenses can be waived, [but] lack of subject matter jurisdiction cannot be
waived.”). Further, Doe was not required to anticipate or plead around that affirmative defense in
the FAC in order to survive dismissal at this stage. See Childers v. New York & Presbyterian Hosp.,
1
Each of the cases Deutsche Bank cites (in a footnote) for the proposition that dismissal is
appropriate under Rule 12(b)(6) is inapposite. Dkt. 44 (“MTD”) at 7 n.5. In Gerber, the release at
issue was attached to the complaint. Gerber Fin., Inc. v. Volume Snacks Inc., 2021 WL 3038780,
at *3 (S.D.N.Y. July 14, 2021). In re Refco concerned a special master’s report and
recommendation to which no party objected; it involved a third-party defendant squarely released
by a settlement agreement in the very litigation at issue; and the third-party defendant moved for
dismissal under Rule 56 in the alternative. In re Refco Inc. Sec. Litig., 2012 WL 12906289, at *3–
4 (S.D.N.Y. Aug. 10, 2012), report and recommendation adopted, 2012 WL 4009175 (S.D.N.Y.
Sept. 12, 2012). And in Keady, the Court converted the motion into one for summary judgment
and the release was “mentioned both in the Complaint itself” and an attachment thereto. Keady v.
J.P. Morgan Chase & Co., 2008 WL 638444, at *2 (S.D.N.Y. Mar. 3, 2008).
5
36 F. Supp. 3d 292, 315 (S.D.N.Y. 2014) (“[A] complaint does not need to anticipate potential
affirmative defenses . . . and to affirmatively plead facts in avoidance of such defenses.”).
The sole case Deutsche Bank cites that considered a release as affecting a court’s subject-
matter jurisdiction, Solis v. 666 Fifth Assocs. LLC, 2021 WL 5998416 (S.D.N.Y. Dec. 20, 2021),
is distinguishable. In Solis, the plaintiff was terminated and sued his former employers. Id. at *1.
Months after filing suit, Solis entered into a release with one employer that released “any co-
employers or joint employers.” Id. at *2. After the second employer sought to enforce that release,
the court determined that the release mooted Solis’s claims against the released employer, and
therefore that it lacked subject matter jurisdiction. Id. at *3–4.2 Unlike in Solis, the Settlement
Agreement here resolved a different case between different parties (Doe and the Epstein Estate).
B. Deutsche Bank Is Not a Released Party Under the Terms of the Agreement.
Even if the Court considered the Settlement Agreement at this stage, its plain language
demonstrates that the parties did not intend for the release to benefit Deutsche Bank. Because it is
not a party to the Agreement, in order to avail itself of the release, Deutsche Bank must establish
that it is a third-party beneficiary by showing “(1) the existence of a valid and binding contract
between other parties, (2) that the contract was intended for [its] benefit and (3) that the benefit to
[it] is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting
parties of a duty to compensate [it] if the benefit is lost.” State of California Pub. Employees’ Ret.
Sys. v. Shearman & Sterling, 741 N.E.2d 101, 104 (N.Y. 2000). “The parties’ intent to benefit the
third party must be apparent from the face of the contract.” LaSalle Nat’l Bank v. Ernst & Young
LLP, 285 A.D.2d 101, 108 (N.Y. App. Div. 2001); see also U.S. Bank Nat’l Ass’n v. GreenPoint
2
The only case Solis relies on for the proposition that a settlement release implicates a
federal court’s subject-matter jurisdiction, In re World Trade Ctr. Lower Manhattan Disaster Site
Litig., 828 F. App’x 734 (2d Cir. 2020) (also unpublished), has nothing to do with a release.
6
Mortg. Funding, Inc., 105 A.D.3d 639, 640 (N.Y. App. Div. 2013). “Absent clear contractual
language evincing such intent, New York courts have demonstrated a reluctance to interpret
circumstances to construe such an intent.” LaSalle, 285 A.D.2d at 108–09 (emphasis added). In
other words, absent a showing that the parties to the contract intended to benefit the third party,
the third party is merely an “incidental beneficiary” with no right to enforce the contract. See Old
Crompond Rd., LLC v. Cnty. of Westchester, 201 A.D.3d 806, 808 (N.Y. App. Div. 2022).
On its face, the Agreement releases claims against the Epstein Estate and any entities,
employees, attorneys, agents, and entities who were “engaged by, employed by, or worked in any
capacity” for Epstein or his estate from claims relating to Epstein’s sex trafficking/abuse. Dkt. 45-
1 at 1. The Agreement makes no mention of banks with which Epstein had accounts. To the
contrary, the Agreement makes clear that it was never intended to cover claims against financial
institutions or their officers or employees:
Id. at 3. For reference,
If the release were as broad as
Deutsche Bank says—covering claims against bankers and financial institutions—then the drafters
would not have unequivocally stated that there was
. Accordingly, the
Agreement is unambiguous that the parties did not intend to release banks.
If this language were not enough, the Agreement contains a strict non-disclosure provision
7
prohibiting the parties from “mak[ing] any disclosure of this General Release and Settlement
Agreement.” Dkt. 47-1 at 2–3. Deutsche Bank admits that it only recently became aware of the
Agreement. MTD at 1. Yet it does not explain how the parties could have both intended Deutsche
Bank to benefit from the Agreement and agreed that they would not share the Agreement with
Deutsche Bank. See Giuffre v. Prince Andrew, 579 F. Supp. 3d 429, 446 (S.D.N.Y. 2022)
(construing confidentiality agreement in release to mean it was not intended to benefit third party).
Deutsche Bank focuses on the following emphasized words: “any entities or individuals
who are or have ever been engaged by (whether as independent contractors or otherwise) employed
by, or worked in any capacity for Jeffrey E. Epstein and/or the Epstein Estate.” See MTD at 8–9
(emphasis added). But Deutsche Bank’s self-serving interpretation has no limiting principle, and
it is unreasonable to believe that Doe intended to release every person who ever took any action
“on [Epstein’s] behalf” (MTD at 9), including, for example, his dry-cleaning service.
In contrast, Doe’s interpretation of the Agreement is far more reasonable, as the language
makes clear that the settling parties never intended for the release to cover banks. The Agreement’s
definition of “Releasee” includes Epstein’s affiliated companies as well as his former employees
and other members of his entourage or household whom he controlled. The Agreement makes
clear, however, that the term “Releasee” does not include other individuals or entities who were
independent or outside his inner circle by referencing other “co-conspirators” and “joint
tortfeasors.” Dkt. 45-1 at 1. Deutsche Bank, as an entity independent from Epstein and his Estate
(the bank was never Epstein’s employee or his independent contractor), falls outside what the
Agreement considers a Releasee and within what it envisioned would be a potential “co-
conspirator” or “joint tortfeasor.” For this reason, the Agreement includes additional language
specifically stating that there is no that the release could apply to
8
certain other Id. at 2.
To get around this clear language, Deutsche Bank suggests that because the parties
excluded specific but not Deutsche Bank, the parties intended to release Deutsche Bank.
MTD at 11. This argument is nonsensical, as under Deutsche Bank’s interpretation Doe would
have had to list out every possible person she intended to preserve claims against. This flips the
third-party beneficiary doctrine on its head, which says that a third party can only benefit from a
contract if it contains “clear contractual language” on “the face of the contract” that shows “[t]he
parties’ intent to benefit the third party,” LaSalle, 285 A.D.2d at 108–09—not if the contract
clearly states that the third party is not an intended beneficiary. The only commonsense
interpretation of the Settlement Agreement that also comports with the law is Doe’s—that is, that
there is no reasonable interpretation of the Agreement that releases a bank.3
But even if Deutsche Bank’s interpretation of the Settlement Agreement were reasonable,
its argument at most raises an ambiguity that cannot be resolved on a motion to dismiss. See
Oppenheimer & Co. v. Trans Energy, Inc., 946 F. Supp. 2d 343, 349 (S.D.N.Y. 2013) (“when the
language of a contract is ambiguous, its construction presents a question of fact, which of course
precludes summary dismissal on a Rule 12(b)(6) motion” (cleaned up)). Deutsche Bank offers no
argument about the parties’ intent (it cannot), and there is no evidence suggesting that both Doe
and the Epstein Estate had a meeting of the minds to release banks. See, e.g., In re Corp. Res.
Servs., Inc., 849 F. App’x 320, 321 (2d Cir. 2021) (“Whether the signatories to a contract intended
3
Deutsche Bank makes much ado about a single phrase in the Agreement saying that it is a
“broad release of any and all Claims of Claimant against any and all Releasees” (Dkt. 45-1 at 1),
and manipulates that phrase to argue that the Agreement was meant to broadly capture potential
releasees. See, e.g., MTD at 10. But this argument ignores the actual language of the provision,
which states that the release is a “broad” release of “claims,” meaning that Doe intended to release
a broad category of claims against the releasees, not that she intended to release a limitless category
of releasees. Dkt. 45-1 at 1–2.
9
the scope of a release of liability to extend to other parties or claims is a question of fact.”). The
Court should reject Deutsche Bank’s arguments concerning the release.
II. DOE HAS PROPERLY PLED SIX TVPA CLAIMS (COUNTS I-VI).
The TVPA provides a civil cause of action for sex-trafficking victims against those who,
like Deutsche Bank, participate in a sex-trafficking venture. In her FAC, Doe brings six claims
against Deutsche Bank under the TVPA, and the Court should deny Deutsche Bank’s motion to
dismiss each of those claims. Deutsche Bank does not contest that Doe is a sex-trafficking victim,
that Jeffrey Epstein ran a sex-trafficking venture, or that the TVPA includes a private right of
action. Deutsche Bank argues only (1) that Doe’s allegations are insufficient to allege that it
participated in a sex-trafficking venture, (2) that Doe’s allegations are insufficient to allege that it
knew or should have known about the sex-trafficking venture, and (3) that Doe’s
aiding-and-abetting, conspiracy, attempt, and obstruction claims are not viable. The Court should
reject each of these arguments as to Doe’s six TVPA claims.
The Court must construe the TVPA broadly because remedial provisions, like Section 1595
of the TVPA, require broad interpretation. See, e.g., A.B. v. Marriott Int’l, Inc., 455 F. Supp. 3d
171, 189 (E.D. Pa. 2020); Ardolf v. Weber, 332 F.R.D. 467, 473 (S.D.N.Y. 2019); Canosa v. Ziff,
2019 WL 498865, at *23 (S.D.N.Y. Jan. 28, 2019).
A. The FAC States a Claim for TVPA Beneficiary Liability (Count I).
The elements of a beneficiary liability claim under Section 1591(a) are: “(1) the person or
entity must ‘knowingly benefit, financially or by receiving anything of value,’ (2) from
participating in a venture, (3) that the ‘person knew or should have known has engaged in an act
in violation of this chapter.’” S.J. v. Choice Hotels Int’l, Inc., 473 F. Supp. 3d 147, 152–53
(E.D.N.Y. 2020). In her FAC, Doe has adequately alleged each of these elements.
10
1. Deutsche Bank Participated in the Sex-Trafficking Venture.
Deutsche Bank contends that the FAC “does not allege that Deutsche Bank ʻparticipat[ed]
in a venture’ with Epstein.’” MTD at 13. Specifically, Deutsche Bank maintains that Doe must
further “allege facts that Deutsche Bank engaged in ‘specific conduct that furthered the sex
trafficking venture’ with Epstein,” and draws a distinction between “passive facilitation” and
actual “participation.” Id. The FAC alleges, however, far more than “passive facilitation.”
The FAC contains specific, factual allegations demonstrating that Deutsche Bank was an
active participant in Epstein’s sex-trafficking venture.4 Among many other detailed factual
allegations, the FAC alleges that Deutsche Bank: (1) provided the venture “$200,000 per year in
cash” (FAC ¶ 321); (2) “concealed its delivery of hundreds of thousands of dollars in cash to
Epstein and his associates” by willfully failing to file reports (id. ¶ 324); (3) “structured” 97 cash
withdrawals by Epstein’s co-conspirators in the amount of $7,500 per withdrawal to avoid alerting
authorities to suspicious transactions (id. ¶ 337); (4) failed to implement oversight imposed by its
Americas Reputational Risk Committee (“ARRC”), which was “a deliberate omission” that
“allowed Epstein to continue funding his sex-trafficking venture through suspicious transactions
that would have otherwise been prevented” (id. ¶ 325); and (5) allowed Epstein to use its accounts
“to send dozens of wires, directly and indirectly, including at least 18 wires in the amount of
$10,000 or more to then known co-conspirators.” (id. ¶¶ 212, 213).
These specific allegations demonstrate that Deutsche Bank not only participated in the
sex-trafficking venture by giving Epstein the tools he needed to pay hundreds of young girls for
4
Further, most district courts have rejected the argument that an overt act in furtherance of
sex-trafficking is required to state a beneficiary liability claim. See, e.g., C.S. v. Wyndham Hotels
& Resorts, Inc., 538 F. Supp. 3d 1284, 1296 (M.D. Fla. 2021); J.L. v. Best W. Int’l, Inc., 521 F.
Supp. 3d 1048, 1062 (D. Colo. 2021); S.Y. v. Naples Hotel Co., 476 F. Supp. 3d 1251, 1256 (M.D.
Fla. 2020).
11
sex and to pay his crucial recruiters, but that it also participated by willfully concealing the venture
so that it could persist for years. This continuous, sustained, and significant business relationship
between Deutsche Bank and Epstein’s sex-trafficking venture easily and adequately alleges active
participation in the sex-trafficking venture. As another district court recently explained, the factor
that “appears to differentiate plaintiffs who adequately state [TVPA] beneficiary claims from those
who do not is that the successful plaintiffs ‘connect the dots’ between the plaintiff’s traffickers and
the specific defendant in the case.” J.C. v. I Shri Khodiyar, LLC, 2022 WL 4482736, at *5 (N.D.
Ga. Aug. 29, 2022). “One way to connect the dots is to allege a ‘continuous business relationship’
between a defendant hotel and a sex trafficker where the defendant rented rooms to people it knew
or should have known were engaged in sex trafficking.” Id.; see also Ricchio v. McLean, 853 F.3d
553, 555 (1st Cir. 2017); S.Y. v. Best Western Int’l, Inc., 2021 WL 2315073, at *4 (M.D. Fla. June
7, 2021); H.H. v. G6 Hosp., LLC, 2019 WL 6682152, at *5 (S.D. Ohio Dec. 6, 2019); M.A. v.
Wyndham Hotels & Resorts, Inc., 425 F. Supp. 3d 959, 971 (S.D. Ohio 2019). Here, just like hotel
owners who provided hotel rooms for trafficking, Deutsche Bank continuously and knowingly
provided cash and other direct financial support for Epstein and his co-conspirators to propel the
venture forward. See A.B., 455 F. Supp. 3d at 191 (denying motion to dismiss beneficiary liability
claim against hotel that “financially benefits from its ongoing reputation for privacy, discretion,
and the facilitation of commercial sex”); M.A. v. Wyndham Hotels & Resorts, Inc., 425 F. Supp.
3d 959, 970 (S.D. Ohio 2019) (denying motion to dismiss beneficiary liability claim against hotel
because “M.A. alleges that the hotels repeatedly rented rooms” and “that the trafficker and the
hotels have established a pattern of conduct or could be said to have a tacit agreement”).
Canosa, 2019 WL 498865, a case involving a TVPA claim against Harvey
Weinstein-controlled companies, is instructive. The complaint in that case alleged “specific means
12
and methods used by multiple company employees to facilitate Weinstein’s sexual assault and to
cover them up afterwards . . . with the predictable effect of enabling future assaults by Weinstein.”
Id. at *24. Here, the same is true: Deutsche Bank provided the cash that paid for and facilitated
Epstein’s sex trafficking, including the trafficking of Doe (see, e.g., FAC ¶¶ 217, 218), facilitated
his payments to victims and recruiters (id. ¶¶ 212, 280–81), and helped him hide the trafficking
from authorities despite many red flags (id. ¶¶ 172, 272–73, 274–76). Deutsche Bank attempts to
distinguish Canosa by arguing that, in that case, the companies took “concrete steps” to aid
Weinstein. But, once again, Deutsche Bank fails to give a fair reading to the FAC, which repeatedly
alleges such “concrete steps,” such as providing hundreds of thousands of dollars in cash, which
made the sex-trafficking venture possible. See, e.g., FAC ¶¶ 154–287, 318, 324–25. Deutsche
Bank’s attempt to distinguish Canosa lays bare the core factual dispute in this case. Deutsche Bank
asserts that the FAC’s allegations do not describe “active engagement” in a sex-trafficking venture
because “the Bank was providing routine banking services to a high-net-worth client, nothing
more.” MTD at 15. But a normal high-net-worth client would not, for example, open the more than
40 accounts that Deutsche Bank admits Epstein did while banking with Defendant, and to say that
Deutsche Bank’s services were “routine” begs the question of why it consciously ignored multiple
red flags that, if caught, would have prevented Epstein’s operation from continuing until 2019.
The FAC’s allegations adequately plead “the pattern of facilitation and cover-up” that the Canosa
court found sufficient to sustain a claim of participation. Canosa, 2019 WL 498865, at *24.
Noble v. Weinstein, another Harvey Weinstein-related case Deutsche Bank cites, is readily
distinguishable. 335 F. Supp. 3d 504 (S.D.N.Y. 2018). That case—which dealt with claims against
Robert Weinstein in connection with his brother’s conduct—involved only allegations that the
defendant facilitated the perpetrator’s travel without linking that travel to the plaintiff’s trafficking.
13
Id. at 524. Here, as alleged and already explained, Deutsche Bank provided financial assistance
that directly enabled ongoing sex-trafficking by Epstein, including the trafficking of Doe (see, e.g.,
FAC ¶¶ 155, 158, 169), and helped him cover it up until his arrest in 2019.
Deutsche Bank tries to analogize this case to G.G. v. Salesforce.com, Inc., but fails. 603 F.
Supp. 3d 626 (N.D. Ill. 2022). The court there explained that the plaintiff had only alleged that
Salesforce provided its standard software to sex-trafficking website Backpage, without alleging
that Salesforce took “part in the construction of the business itself.” Id. at 648. Here, the FAC
explains repeatedly why Deutsche Bank’s actions were far from routine banking services. For
example, Doe has alleged that “[i]t was far from routine for Deutsche Bank to provide $200,000
per year in cash to someone like Epstein, who did not have an apparent need for such extravagant
sums. Moreover, the circumstances in which Epstein was requesting such large amounts were far
from routine and raised numerous ‘red flags’—taking it well outside routine circumstances.” FAC
¶ 320. The FAC also alleges that, after providing cash to the venture, Deutsche Bank concealed
what it had done by failing to file required reports with the government and refusing to enforce
oversight requirements over Epstein that it was pretending were in place. Id. ¶¶ 324–25.5
2. Deutsche Bank Benefited from its Participation in the Sex-Trafficking

Venture.
Deutsche Bank does not dispute that it financially benefited from Epstein’s business, but
argues that Doe failed to allege any “causal relationship” between Deutsche Bank’s participation
in sex trafficking and the benefit it received.6 MTD at 16. Not so. The FAC alleges in detail the
5
Notably, Salesforce distinguished cases where there was “‘a showing of a continuous
business relationship between the trafficker and the [defendant],” including the line of cases cited
supra at 12. 603 F. Supp. 3d at 644.
6
Some courts have held that no such “causal relationship” between the benefit and
participation and sex trafficking is required. See HH v. G6 Hospitality, Inc., 2019 WL 6682152, at
*2 (S.D. Ohio Dec. 6, 2019). The Second Circuit has not decided this issue, but in any event, such
a causal relationship is clearly alleged in the FAC.
14
quid pro quo between Epstein and Deutsche Bank, and the benefits Deutsche Bank received in
direct exchange for its facilitation of and participation in the venture. See, e.g., FAC ¶¶ 143, 144,
148–50, 152, 340. As explained in the FAC, Paul Morris, the relationship manager who brought
Epstein to Deutsche Bank, “noted how lucrative becoming Epstein’s banker could be, stating
‘[e]stimated flows of $100-300 [million] overtime [sic] (possibly more) w/ revenue of $2-4 million
annually over time.’” Id. ¶ 205. Morris also proposed “that all Epstein-related accounts be for
‘entities’ affiliated with Epstein, ‘not personal accounts,’” to help conceal Deutsche Bank’s
participation in Epstein’s sex-trafficking venture and the existence of the venture. Id.; see also id.
¶ 243 (member of ARRC was comfortable with continuing Epstein relationship because of
“number of sizable deals” it was obtaining). These allegations do not reflect Deutsche Bank merely
evaluating “potential revenue estimates,” as Deutsche Bank suggests (MTD at 16), but raise the
plausible inference that Deutsche Bank knowingly participated in the venture in exchange for this
substantial revenue. See Canosa, 2019 WL 498865, at *24 (allegation that by “facilitating and
covering up Weinstein’s sexual assaults, TWC made Weinstein more likely to continue to work
for TWC” adequately pleaded knowingly benefiting from trafficking).
3. Deutsche Bank Both Knew and Should Have Known About Epstein’s Sex-
Trafficking Venture.
Deutsche Bank next contends that the FAC alleges only that it had some sort of “abstract
awareness of sex trafficking in general”—not awareness of Epstein’s sex-trafficking venture in
particular. MTD at 16. This argument fails for several reasons.
a. Knowledge that Doe Was a Sex-Trafficking Victim
Deutsche Bank first claims that the TVPA somehow requires that it specifically knew that
Doe was one of Epstein’s specific victims. MTD at 16–19. But nothing in the TVPA’s language
requires that a defendant have specific knowledge of the identity of the plaintiff. Under the plain
15
text of the statute, the victim need only allege “that (1) the person or entity . . . knowingly
benefit[ted], financially or by receiving anything of value, (2) from participating in a venture, [and]
(3) that the person knew or should have known [he] has engaged in an act in violation of this
chapter.” S.J., 473 F. Supp. 3d at 152–53 (internal quotation marks omitted). Nothing in the
language of the TVPA requires specific knowledge of a particular victim, and Deutsche Bank cites
no controlling precedent imposing such a pleading requirement.
As Deutsche Bank recognizes (MTD at 17 n.15), a district court within this Circuit has
effectively rejected the argument that a TVPA defendant must have specific knowledge of the
identity of a specific trafficking victim. In Choice Hotels, the court considered the argument that
the defendant must have had knowledge of “some participation in the sex trafficking act itself.”
473 F. Supp. 3d at 153. This requirement was adopted in Noble, which relied on an unpublished
Sixth Circuit decision in a criminal case, United States v. Afyare, 632 F. App’x 272, 285 (6th Cir.
2016). But as the Choice Hotels court explained, Afyare was analyzing a criminal provision of the
TVPA, and “thus several courts have rejected this further element as inapplicable to a distinct”
civil provision, § 1595. Choice Hotels, 473 F. Supp. 3d at 153; A.B., 455 F. Supp. 3d at 188–89.
The Choice Hotels court held that not requiring specific knowledge of a sex-trafficking act
in civil cases was “correct, not only because of the inherent differences between civil and criminal
liability, but because Congress intended to broaden the behavior that can form the basis of civil
liability when it amended the [TVPA] in 2008.” 473 F. Supp. 3d at 153. Congress did so by
including the “knew or should have known” language in § 1595, the civil provision, while the
TVPA’s criminal provision does not contain the “should have known” language and thus requires
actual knowledge. 18 U.S.C. § 1591 (emphasis added). “In effect, the broader understanding of
§ 1591 means that a person may be held liable if he should have known that he was facilitating a
16
sex trafficking venture, even if his participation [was] not direct participation in the sex
trafficking.” Choice Hotels, 473 F. Supp. 3d at 153. (emphasis added). Here, the FAC alleges that
Deutsche Bank was knowingly providing cash and other financial support to “people it knew or
should have known were engaged in sex trafficking”—that is, Jeffrey Epstein and his co-
conspirators. See FAC ¶ 211–19.
Even if knowledge that the particular plaintiff was trafficked is required under the statute
(it is not), the “knew or should have known” language in § 1595’s civil liability provision
establishes a negligence/constructive knowledge standard rather than an actual knowledge
standard. See M.A., 425 F. Supp. 3d at 966. Under this standard, a defendant “need not have actual
knowledge of the sex trafficking in order to have participated in the sex-trafficking venture for
civil liability under the [TVPA], otherwise the ‘should have known’ language in § 1591(a) would
be meaningless.” Id. at 971. Here, as the FAC explains, Deutsche Bank knew that specific
individual women and girls were being coercively sex trafficked by Epstein and “[e]ven if
Deutsche Bank did not know all the names of Epstein’s victims, it knew that specific victims (e.g.,
Doe) of a specific trafficker (Epstein) at a specific time period (various dates between 2013–19)
existed and were being forced to engage in commercial sex acts.” FAC ¶ 331. If Deutsche Bank
wanted to know the identities of those victims, it could have obtained (or at least attempted to
obtain) that information, especially given that Doe alleges that certain of its employees attended
meetings at Epstein’s home when victims were present. Id. ¶ 236. And, of course, Doe herself was
forced to open a bank account with Deutsche Bank, all while Deutsche Bank was ignoring red flags
and public reports of Epstein’s sex-trafficking venture and helping to conceal it from authorities.
Id. ¶ 169. At the very least, Doe has alleged that Deutsche Bank should have known that she was
a victim of Epstein’s long running, widespread, trafficking venture.
17
b. Knowledge of a Specific Sex-Trafficking Venture
Deutsche Bank next argues that Doe merely alleges awareness of a “general sex trafficking
problem” as opposed to a “particular sex-trafficking venture.” MTD at 19–24. This argument is
meritless. Before his onboarding at Deutsche Bank, Epstein was convicted of soliciting a minor
for prostitution and received immunity for sex-trafficking charges. FAC ¶ 42–43, 279. Deutsche
Bank waves away this extensive public knowledge about Epstein’s conduct (from before its
onboarding of Epstein) because the charge was a “non-trafficking charge.” MTD at 20. But the
requirement that Deutsche Bank knew or should have known about a sex-trafficking venture does
not require a sex-trafficking conviction. Further, Epstein’s immunity deal was made public in
2008, and received widespread attention detailing the sex-trafficking charges that Epstein could
have been charged with and the trafficking conduct underlying the investigation. FAC ¶¶ 191–
193.
The FAC specifically alleges that Deutsche Bank knew about Epstein’s specific
sex-trafficking venture, not that sex trafficking generally existed in the world, beginning at the
latest in 2013, when it began opening accounts for him. Id. ¶ 210. For years before, Epstein had
been running the venture with JP Morgan, where Paul Morris “had been a member of the team
servicing Epstein’s account” and was aware of the venture. Id. ¶ 201. In November 2012, Morris
joined Deutsche Bank, “bringing with him the knowledge he had acquired at JP Morgan about
Epstein’s sex-trafficking venture and conspiracy”—beyond the knowledge that Deutsche Bank
already had at this time due to Epstein’s widely publicized conviction and conduct. Id. ¶ 202. The
FAC also specifically discusses the onboarding memorandum that Morris sent to higher-ups at
Deutsche Bank about bringing Epstein over—a memorandum reviewing Epstein’s history of sex
trafficking. Id. ¶¶ 203–08. Despite this, Deutsche Bank never undertook a formal Know Your
Customer (“KYC”) investigation for Epstein “because it knew what the investigation would reveal,
18
and that it would not be able to serve Epstein after such an investigation based on his well-
documented and publicized history of sex trafficking.” Id. ¶¶ 208, 209.
Deutsche Bank’s knowledge of Epstein’s sex-trafficking venture only continued to expand
after his onboarding. Id. ¶¶ 211–87. Beginning around November 2013, Epstein began using
Deutsche Bank to send sizable wire transfers to his sex-trafficking co-conspirators, whose names
had been made public years earlier. Id. ¶¶ 212–16. Further, in 2014 and into 2015, an internal
department alerted Deutsche Bank management about “Epstein’s sex trafficking,” but
management chose to ignore it. Id. ¶ 231. On January 22, 2015, Deutsche Bank’s senior
management actually “met privately and in person with Epstein at his New York home,” “Packard
asked Epstein about his involvement in sex trafficking,” and observed victims present in the home.
Id. ¶¶ 235, 236.7 And “other Deutsche Bank employees also met with Epstein personally outside
the bank and made observations consistent with Epstein’s daily sex trafficking activities, which
included being surrounded by certain of his victims.” Id. ¶ 238.
Further demonstrating knowledge, around January 2015, Deutsche Bank’s ARRC placed
three conditions on the relationship that “were necessary (although not sufficient) to prevent
Epstein from using Deutsche Bank accounts in furtherance of sex abuse and coercive sex
7
Deutsche Bank’s meeting with the trafficker (Epstein) at the place of the trafficking (his
mansion) in the presence of his victims distinguishes this case from those Deutsche Bank cites
finding that general knowledge that sex-trafficking is a problem is insufficient. See, e.g.,
Lundstrom v. Choice Hotels Int’l, Inc., 2021 WL 5579117, at *8–9 (D. Colo. Nov. 30, 2021)
(allegations that a defendant hotel franchisor was “on notice about the prevalence of sex trafficking
generally at its hotels and in the hotel industry” was “not sufficient to show that the defendant
should have known about what happened to [the] plaintiff” and thus could not sustain § 1595
claim); E.S. v. Best W. Int’l, Inc., 510 F. Supp. 3d 420, 428 (N.D. Tex. 2021) (complaint lacked
any allegations as to how defendants hotel franchisor and parent company knew or should have
known about trafficking); B.M. v. Wyndham Hotels & Resorts, Inc., 2020 WL 4368214, at *5–6
(N.D. Cal. July 30, 2020) (same); Lawson v. Rubin, 2018 WL 2012869, at *13 (E.D.N.Y. Apr. 29,
2018) (“Plaintiffs did not claim that [defendant] had actual notice of the alleged activity, only that
it should have known about alleged trafficking based on its duty to monitor the premises.”).
19
trafficking.” Id. ¶ 245. Deutsche Bank also knew about Epstein’s suspicious cash transactions. Id.
¶¶ 258–68. Between 2013 through 2017, a close associate of Epstein made a total of 97 cash
withdrawals amounting to hundreds of thousands of dollars from Deutsche Bank’s Park Avenue
Branch from Epstein’s personal accounts. Id. ¶ 258. These withdrawals appeared to have been
structured (in amounts of $7,500) to avoid triggering the filing Currency Transaction Reports with
the U.S. Treasury Department. Id. ¶¶ 258–59. Indeed, Epstein’s associate discussed with Deutsche
Bank employees how to avoid “creating some sort of alert.” Id. ¶ 260.
If that were not enough, a confidential witness reported that “Deutsche Bank had a KYC
‘special deal’ for Epstein and other high-net-worth individuals” who “were not required to submit
to the normally required KYC documentation.” Id. ¶ 266. Deutsche Bank gave Epstein this “special
deal” because “applying standard KYC regulations would have more fully exposed Epstein’s sex-
trafficking venture.” Id.; see also id. ¶ 268. All these allegations go far beyond merely failing “to
take appropriate steps to detect and prevent sex trafficking” or a generalized knowledge about sex
trafficking as an issue in the world, as Deutsche Bank describes them. MTD at 21. Indeed, as the
FAC accurately summarizes, “Deutsche Bank did not simply fail to adequately detect signs of
Epstein’s sex trafficking; it did detect multiple signs of Epstein’s sex-trafficking venture and
continue to participate in the venture.” FAC ¶ 327 (emphasis in original).
In sum, Doe has properly pled that Deutsche Bank had both actual and constructive
knowledge that Epstein was engaged in a particular and ongoing coercive sex-trafficking venture
that harmed her. The Court should deny Deutsche Bank’s motion to dismiss Count I.
B. The FAC States a Claim for TVPA Perpetrator Liability (Count II).
Doe has also stated a claim against Deutsche Bank as a direct perpetrator of sex trafficking
under 18 U.S.C. § 1591(a)(1), because it knowingly perpetrated, assisted, supported, and facilitated
a sex-trafficking venture with Epstein. Deutsche Bank cursorily asserts that the Court should
20
dismiss Count II for the same reasons as Count I. MTD at 24–25. But Deutsche Bank ignores the
FAC’s allegations that, for example, the cash that Deutsche Bank provided Epstein was part of the
“recruitment” of Doe and other victims. FAC ¶¶ 52, 55, 58, 67, 77, 108, 215, 217, 218, 226, 263,
264, 268. The Court should deny Deutsche Bank’s motion to dismiss Count II.
C. The FAC States TVPA Claims for Aiding and Abetting, Conspiracy, Attempt,
and Obstruction (Counts III–VI)
With respect to the next four counts in Doe’s complaint, Deutsche Bank maintains that the
FAC fails to state an actionable civil claim under TVPA’s “civil remedy” provision, 18 U.S.C.
§ 1595(a). The civil remedy provision provides a remedy for any violation of “this chapter.” 18
U.S.C. § 1595(a). Deutsche Bank reads this broad language as permitting civil actions for only
certain limited violations of “this chapter”—specifically, only for § 1591(a). See MTD at 25–27.
If Congress wanted to limit the TVPA’s civil remedy to a few select subsections of “this chapter”
(i.e., Chapter 77, 18 U.S.C. §§ 1581–97), it could have said so. See, e.g., In re Barnet, 737 F.3d
238, 246 (2d Cir. 2013) (“[S]tatutory interpretation requires us to presume that the legislature says
in a statute what it means and means in a statute what it says there.”) (cleaned up). It did not.
1. Count III Properly Alleges Aiding and Abetting Liability.
Regarding Count III (aiding and abetting), Deutsche Bank argues that Section 1595 does
not provide for aiding and abetting liability. MTD at 26 (citing Noble, 335 F. Supp. 3d at 525). In
turn, Noble cites as authority Central Bank of Denver, which held that there is no civil liability for
aiding and abetting a violation of Section 10(b) of the 1934 Securities Act. Central Bank of Denver,
N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 186–92 (1994). But Central Bank of
Denver concerned an “implied cause of action.” See id. at 191. Here, in clear contrast, Congress
has explicitly provided a statutory civil cause of action for “a victim of a violation of this chapter
. . . against the perpetrator . . . .” 18 U.S.C. § 1595(a). And, under 18 U.S.C. § 2, anyone who aids
21
and abets a violation of the chapter is “punishable as a principal,” making that person a perpetrator
of a violation of the chapter. Noble did not consider this argument—and, accordingly, it reached
the wrong conclusion. And for all of the reasons explained above, see supra at 11–14, the FAC
alleges that Deutsche Bank knowingly assisted Epstein’s sex-trafficking venture.
2. Count IV Properly Alleges Conspiracy Liability.
Under Section 1594(c), Doe has adequately pled that Deutsche Bank conspired with
Epstein to violate Section 1591(a)(2) by conspiring to knowingly benefit financially from sex
trafficking—a conspiracy prohibited by 18 U.S.C. § 1594(c) (“Whoever conspires with another to
violate section 1591” is guilty of an offense). Here, as explained above, Epstein was engaged in a
criminal, sex-trafficking venture (which Deutsche Bank does not dispute), and Deutsche Bank
knowingly provided Epstein with the means to effectuate and continue that criminal venture with
the accounts, cash, and other tools it provided him, all while knowing about the venture and the
ways in which Deutsche Bank could profit from it. See supra at 11–20. Such is sufficient to state
a claim for TVPA conspiracy. See Fleites v. MindGeek S.A.R.L., 2022 WL 4456077, at *10 (C.D.
Cal. July 29, 2022) (plaintiff adequately alleged TVPA conspiracy claim based on “Visa’s alleged
knowing decision to provide the means through which MindGeek could monetize child porn
videos, like those featuring Plaintiff”).
Deutsche Bank argues that there is no cause of action for conspiracy under the TVPA. But
conspiracy in violation of Section 1594(c) falls within the ambit of the civil liability provision of
§ 1595 because it is within “this chapter” (e.g., Chapter 77 of Title 18, §§ 1581–97). Deutsche
Bank asserts that “the version of Section 1595 that governs the relevant conduct in this action—
all of which occurred prior to 2023—does not create causes of action against alleged beneficiaries
for attempt or conspiracy.” MTD at 25. But recent legislation affirms that liability for attempt or
conspiracy was always part of the statute. A few weeks ago, Congress passed the Abolish
22
Trafficking Reauthorization Act of 2022, P.L. 117-347, 136 Stat. 6199 (Jan. 5, 2023), which added
a “technical and clarifying update to [the] civil remedy” provision in Section 1595, adding explicit
liability for a person who “attempts or conspires to benefit” from a TVPA violation. Id. § 102
(emphasis added). Because Congress viewed this amendment as a “clarifying” amendment, it
applies to this case even though it was passed after this lawsuit was filed. Norsoph v. Riverside
Resort & Casino, Inc., 2020 WL 641223, at *9 (D. Nev. Feb. 11, 2020) (“Clarifying legislation is
not subject to any presumption against retroactivity and is applied to all cases pending as of the
date of its enactment.”) (cleaned up); see also Brown v. Thompson, 374 F.3d 253, 259 (4th Cir.
2004); Johnson v. U.S. Dep’t of Hous. & Urb. Dev., 911 F.2d 1302, 1308 (8th Cir. 1990).
Deutsche Bank also argues that the FAC “fails to allege that Deutsche Bank conspired to
commit violations of the TVPA.” MTD at 26. But Count IV alleges precisely such a conspiracy in
detail. See FAC ¶¶ 392–423. For example, the FAC specifically alleges that “[t]he Epstein
sex-trafficking conspirators had a shared and common purpose”—securing young women and girls
for Epstein to sexually abuse and to commercially sex traffic (id. ¶ 398). The FAC also alleges that
Deutsche Bank: agreed to facilitate the venture by, for example, conspiring to keep the cash
disbursals secret (id. ¶ 401); opening 40 accounts for Epstein (id. ¶ 407); concealing its delivery
of hundreds of thousands of dollars in cash to Epstein (id. ¶ 408); purposely failing to file required
suspicious activity reports (id. ¶¶ 408, 410); and doing so while knowing about the sex-trafficking
venture (id. ¶ 342–45). See MindGeek, 2022 WL 4456077, at *10 (“Visa’s agreement to financially
benefit from child porn can be inferred from its decision to continue to recognize MindGeek as a
merchant despite allegedly knowing that MindGeek monetized . . . child porn.”).
Deutsche Bank repeats its claim that it needed to have “actual knowledge” of the
sex-trafficking venture to be liable for conspiracy. MTD at 26. But Doe has alleged actual
23
knowledge of the venture. See supra at 15–20. Even if she had not, Deutsche Bank overstates the
knowledge requirements for a conspiracy claim—it is well-settled that a person, by virtue of being
a party to a conspiracy, may be held responsible for the actions of his “partner[s] in crime.”
Pinkerton v. United States, 328 U.S. 640, 647 (1946); see also United States v. Gershman, 31 F.4th
80, 99 (2d Cir. 2022) (discussing “Pinkerton liability” under which a defendant may be held
responsible for crime he did not personally commit); Paguirigan v. Prompt Nursing Emp. Agency
LLC, 286 F. Supp. 3d 430, 440 (E.D.N.Y. 2017) (conspiracy can be inferred if the co-conspirators
“entered into a joint enterprise with consciousness of its general nature and extent”). Under this
established principle, once Deutsche Bank agreed with Epstein to further his sex-trafficking
venture in violation of the TVPA, it became liable for Epstein’s actions in furtherance of the
conspiracy. And, of course, Epstein coercively trafficked Doe and knew that he was trafficking
Doe. Deutsche Bank is thus properly subject to a civil claim for TVPA conspiracy. See, e.g.,
Ricchio v. McLean, 853 F.3d 553, 555–58 (1st Cir. 2017).
3. Count V Properly Alleges Attempt Liability.
Deutsche Bank rehashes similar, unpersuasive arguments in asking the Court to dismiss
Count V, which alleges attempt liability. As explained above, any doubt about the propriety of a
TVPA attempt claim was eliminated several weeks ago in Congress’s “technical and clarifying”
amendment to Section 1595, adding explicit civil liability for a person who “attempts” to benefit
from a TVPA violation. See supra at 22–23.8 The FAC also properly alleges the elements of
attempt liability, alleging both that (1) Deutsche Bank intended to knowingly benefit from the sex-
trafficking venture and (2) Deutsche Bank’s conduct amounted to a substantial step towards the
8
The out-of-circuit case Deutsche Bank cites, Ratha v. Phatthana Seafood Co., was decided
before Congress passed the January 5, 2023, clarifying amendment to the TVPA. 35 F.4th 1159,
1176 (9th Cir. 2022), cert. denied, 2022 WL 17408202 (U.S. Dec. 5, 2022).
24
TVPA offense. MTD at 27. The FAC makes clear Deutsche Bank’s direct quid pro quo between
Epstein and the bank, demonstrating that it intended to benefit from the sex-trafficking through
the millions of dollars it received in exchange for facilitating the trafficking. FAC ¶¶ 143, 144,
148–50, 152, 205, 214, 340. The FAC also alleges countless “substantial steps” that Deutsche
Bank took to facilitate the trafficking with the intent of financially benefiting, including, for
example, providing the venture “$200,000 per year in cash” (id. ¶ 321), willfully failing to file
suspicious activity reports “because doing so would imperil its ability to profit from the sex-
trafficking venture” (id. ¶ 324), and structuring cash withdrawals to avoid detection (id. ¶ 337).
4. Count VI Properly Alleges Obstruction Liability.
Deutsche Bank next argues that the Court should dismiss Count VI, which alleges
obstruction of TVPA enforcement. Deutsche Bank claims that the only “victim” of obstruction is
the government. MTD at 27. But sex-trafficking victims can also be directly and proximately
harmed, which is exactly what Doe alleges here. FAC ¶ 459. Federal courts have recognized
government process crimes can harm not only the government, but also individuals. See, e.g.,
United States v. The Boeing Co., 2022 WL 13829875, at *7–9 (S.D. Tex. Oct. 21, 2022) (those
killed in Boeing crashes were “victims” under Crime Victims’ Rights Act of Boeing’s conspiracy
to defraud FAA because conspiracy “directly and proximately” caused crashes); see also United
States v. Hoover, 175 F.3d 564, 566–69 (7th Cir. 1999) (university was “victim” of false statement
offense because it provided loans based on misrepresentations); United States v. Haggard, 41 F.3d
1320, 1325 (9th Cir. 1994) (mother of kidnapping victim, in a prosecution for making false
statements to the FBI, was herself a victim of defendant’s crimes for restitution purposes).
Citing cases with different facts, Deutsche Bank also contends that an obstruction count is
not proper unless Deutsche Bank knew about a government investigation. MTD at 27. But here,
the FAC specifically alleges Deutsche Bank was aware it was obstructing several criminal
25
investigations being pursued in both the Southern District of Florida and in this District that could
have resulted in the trafficking ending sooner. FAC ¶¶ 42–46, 60–63, 188–99, 212–13, 445–48. In
addition, unlike cases not involving banks, Deutsche Bank was required to file suspicious activity
reports with the federal government. The FAC explains how Deutsche Bank’s willful failure to
file those reports obstructed TVPA enforcement and harmed Doe. Id. ¶¶ 448–54.
D. The FAC States RICO and RICO Conspiracy Claims (Counts VII–VIII).
Doe has pled a RICO claim, under 18 U.S.C. § 1962(c) (Count VII), and a RICO conspiracy
claim, under 18 U.S.C. § 1962(d) (Count VIII), both actionable under 18 U.S.C. § 1964(c). FAC
¶¶ 465–531. Deutsche Bank advances three reasons for dismissal. None are persuasive.
1. The FAC Alleges Predicate Offenses.
Deutsche Bank contends the FAC fails to properly allege “predicate offenses.” MTD at 28.
But this merely reprises its earlier, unpersuasive arguments as to TVPA liability. Because the Court
should allow Doe’s TVPA claims under Section 1591 to proceed, it should likewise allow her
RICO claims to proceed.9 The FAC also alleges criminal violations of the Currency and Foreign
Transactions Report Act (commonly referred to as the Bank Secrecy Act) which are predicate
offenses under 18 U.S.C § 1961(1)(E). Deutsche Bank’s only argument is that its violations needed
to be “willful” to be criminal. MTD at 28. But the FAC alleges that Deutsche Bank acted
intentionally or willfully when failing to file required reports with the federal government, which
is in fact criminal. FAC ¶¶ 274–76, 324, 365, 482–95.
9
Moreover, certain TVPA criminal violations (such as obstructing TVPA enforcement, in
violation of 18 U.S.C. § 1591(d)) can serve as predicate offenses even if they are not civilly
actionable under the TVPA itself. See 18 U.S.C. § 1964(c) (providing civil cause of action for
violation of § 1962(c), which in turn covers a “pattern of racketeering activity,” which in turn is
defined in § 1961(1) as any “act indictable” under, among others, 18 U.S.C. §§ 1581–92).
26
2. The FAC Alleges Participation in the Conduct of the Enterprise.
18 U.S.C. § 1962(c) requires that Deutsche Bank “participate[d], directly or indirectly, in
the conduct of the [criminal enterprise’s] affairs.” “To show a defendant’s ‘participation’ in the
racketeering activity, a plaintiff need only demonstrate that defendant played some part in the
operation of the enterprise, even if not the predominant one.” Allstate Ins. Co. v. Afanasyev, 2016
WL 1156769, at *8 (E.D.N.Y. Feb. 11, 2016), report and recommendation adopted, 2016 WL
1189284 (E.D.N.Y. Mar. 22, 2016). At the “pleading stage, the participation element is a relatively
low hurdle for plaintiffs to clear.” Id. (cleaned up). “The word ‘participate’ makes clear that RICO
liability is not limited to those with primary responsibility for the enterprise’s affairs, just as the
phrase ‘directly or indirectly’ makes clear that RICO liability is not limited to those with a formal
position in the enterprise.” JSC Foreign Econ. Ass’n Technostroyexport v. Weiss, 2007 WL
1159637, at *8 (S.D.N.Y. Apr. 18, 2007) (cleaned up).
Deutsche Bank appears to concede that the FAC contains the requisite participation
allegations. FAC ¶¶ 154–77, 234–36, 470–95 (RICO); id. ¶¶ 517–31 (RICO conspiracy). But it
briefly complains that the FAC lacks the required factual support. MTD at 28–29. The FAC,
however, alleges (among other things) a long-running (seven-year) criminal enterprise, in which
Deutsche Bank was a central figure. Compare Dubai Islamic Bank v. Citibank, N.A., 256 F. Supp.
2d 158, 165 (S.D.N.Y. 2003) (dismissing RICO claim against Citibank for lack of “central figure”
allegations), with FAC ¶¶ 154–77, 470–89 (alleging that Deutsche Bank joined Epstein’s
sex-trafficking enterprise as part of its “high risk, high reward” strategy and was planning to earn
millions of dollars annually). Moreover, unlike other banking cases with more remote connections
between the financial institution and the criminals, this case features a nefarious secret “due
diligence” meeting directly between Epstein and Deutsche Bank officials—a meeting at Epstein’s
mansion where sex-trafficking victims were visible (id. ¶ 326) and where bank officials
27
deliberately failed to maintain records of what occurred (id. ¶¶ 240–41). The FAC also alleges that
Deutsche Bank made concerted efforts to cover up Epstein’s enterprise. (Id. ¶¶ 490–95).
Deutsche Bank relies on Picard v. Kohn, a readily distinguishable case involving “paltry,
and otherwise unexceptional, factual allegations” of participating in the affairs of Bernie Madoff’s
fraud. 907 F. Supp. 2d 392, 400–01 (S.D.N.Y. 2012) (dismissing RICO counts because, for
example, plaintiff relied on vague references to investigations that did not mention “what conduct
prompted the investigation, nor what crimes foreign authorities alleged, nor even that the
investigation related, in any way, to UniCredit’s evasion of claims by Madoff Securities’
customers”). Here, in contrast, the FAC is replete with factual allegations of Deutsche Bank’s
participation in the financial affairs of the criminal enterprise by taking affirmative steps to conceal
(through “structuring” and otherwise) the distribution of hundreds of thousands of dollars in cash
to Epstein over many years. See, e.g., FAC ¶¶ 78, 221, 260–63, 491–495.
3. The FAC Alleges RICO Injury.
Doe has properly pled RICO injury to business and property. FAC ¶¶ 500–11. Indeed, the
FAC contains specific allegations about how the Epstein criminal enterprise used the economic
dependency of its victims to coerce Doe and other victims into commercial sex acts. Id. ¶¶ 503–
04 (Epstein prevented Doe “from obtaining employment and income outside” the venture,
“render[ing] its victims economically vulnerable to any effort to escape”); see Canosa, 2019 WL
498865, at *26 (suggesting detriment to career sufficient to allege RICO injury); Nat’l Asbestos
Workers Med. Fund v. Philip Morris, Inc., 74 F. Supp. 2d 213, 219 (E.D.N.Y. 1999) (“allowing
RICO claims for economic damages associated with personal injuries represents a defensible
policy and interpretation of RICO”). And the FAC specifically alleges that the Epstein enterprise
created alleged “debts” to coerce sex. FAC ¶ 506. Deutsche Bank does not directly engage these
factual allegations regarding injury but complains that the losses are “unquantifiable.” MTD at 29.
28
Doe has not yet had the opportunity to quantify her losses through appropriate expert and other
testimony, which will be developed during discovery. In any event, a RICO injury need not be
quantifiable, see Potomac Elec. Power Co. v. Elec. Motor and Supply, Inc., 262 F.3d 260, 265 (4th
Cir. 2001), and “certainty as to the amount of damages is not required at the pleading stage,” see
Alix v. McKinsey & Co., 23 F.4th 196, 207 (2d Cir. 2022).
4. The FAC Alleges RICO Causation.
Deutsche Bank concedes that Doe properly alleges a direct connection between its conduct
and her injuries but complains that the allegations are “conclusory.” MTD at 30. The FAC traces
through at length, however, how Deutsche Bank’s cash was directly used by Epstein as a means
of coercing sex. See, e.g., FAC ¶¶ 77–78, 484–85. The Court must “draw all reasonable inferences
in [Doe’s] favor” and “causation need only be probable.” Alix, 23 F.4th at 205–06.
Doe has alleged that Deutsche Bank deliberately funded a sex-trafficking venture and only
needs to show she “suffered the sort of injury which would be the expected consequence of the
defendant’s wrongful conduct.” BCS Servs., Inc. v. Heartwood 88, LLC, 637 F.3d 750, 758 (7th
Cir. 2011). Doe’s injuries were squarely foreseeable consequences of Deutsche Bank’s decision
to fund a sex-trafficking venture. Deutsche Bank contends that there were “numerous intervening
factors” that led to Doe’s injuries. MTD at 31. But “[t]he plaintiff doesn’t have to prove a series
negatives; [she] doesn’t have to offer evidence which positively exclude[s] every other possible
cause of the [injury].” BCS, 637 F.3d at 757 (internal quotation marks omitted).
5. The FAC Alleges RICO Conspiracy.
In addition to properly pleading a RICO claim (Count VII), Doe has also properly pled a
RICO conspiracy claim (Count VIII). In its two-sentence response, Deutsche Bank does not
contend that Doe’s conspiracy claim is defective, but rather that it must be dismissed “because
[she] has failed to plead a RICO claim.” MTD at 31. A defendant may be liable for a conspiracy,
29
however, even if it did not commit the substantive acts that could constitute violations of RICO.
See United States v. Alonso, 740 F.2d 862, 871–72 (11th Cir. 1984) (commission of substantive
offense unnecessary for RICO conspiracy conviction); Roche Diagnostics Corp. v. Priority
Healthcare Corp., 407 F. Supp. 3d 1216, 1243 (N.D. Ala. 2019) (applying Alonso’s principles to
civil RICO case). It is undeniable that Epstein committed multiple RICO violations. The only
remaining question for the conspiracy count is therefore whether the FAC properly alleges that
Deutsche Bank agreed to support him in his violations. Under RICO, if the “conspirators have a
plan which calls for some conspirators to perpetrate the crime and others to provide support, the
supporters are as guilty as the perpetrators.” Salinas v. United States, 522 U.S. 52, 63 (1997). The
FAC clearly alleges that Deutsche Bank was a deliberate “supporter” of Epstein’s RICO violations,
and thus it is liable itself for RICO conspiracy entirely apart from the allegations in the substantive
RICO count. Cf. M.A., 425 F. Supp. 3d at 970 (participation in sex-trafficking venture for purposes
of a beneficiary liability claim can be alleged through “tacit agreement” to facilitate trafficking).
Accordingly, Doe has sufficiently alleged Deutsche Bank’s participation in the sex-trafficking
venture.
III. DOE HAS PROPERLY PLED HER TORT CLAIMS (COUNTS IX-XII).
A. The FAC States a Claim for Aiding and Abetting Battery (Count IX).
The FAC properly alleges, under black letter New York tort law, that Deutsche Bank aided
and abetted Epstein’s batteries against her. To allege a cause of action for aiding and abetting an
assault and battery, the plaintiff must allege: “(1) a wrongful act producing an injury; (2) the
defendant’s awareness of a role as a part of an overall illegal or tortious activity at the time he
provides the assistance; and (3) the defendant’s knowing and substantial assistance in the principal
violation.” Scollo ex rel. Scollo v. Nunez, 847 N.Y.S.2d 899 (Sup. Ct. 2007), aff’d, 60 A.D.3d 840
(N.Y. App. Div. 2009). Doe has adequately alleged each element: (1) Doe was sexually abused by
30
Epstein for years, amounting to battery (FAC ¶¶ 128, 132–36); (2) Deutsche Bank was aware of
its role in Epstein’s overall illegal activity, his sex-trafficking venture (see supra at 15–20); and
Deutsche Bank provided knowing and substantial assistance through its direct participation in and
facilitation of Epstein’s sex-trafficking venture, pursuant to which Doe was battered for years (see
supra at 11–14). See, e.g., Maurizi v. Callaghan, 2022 WL 1446500, at *14 (W.D.N.Y. Feb. 25,
2022), report and recommendation adopted, 2022 WL 1444182 (W.D.N.Y. May 5, 2022) (denying
motion to dismiss aiding and abetting claims where complaint alleged defendant knew coach was
engaging in sexual activity with skaters, yet endorsed him for a coaching position where abuse
continued); Kashef v. BNP Paribas S.A., 2021 WL 603290, at *9 (S.D.N.Y. Feb. 16, 2021)
(denying motion to dismiss aiding and abetting claims against financial institution where plaintiffs
alleged that institution contributed to Sudanese Regime’s human rights abuses).
In its single-sentence response, Deutsche Bank argues that it could not have “intentionally
or deliberately sought to cause an assault it did not know about.” MTD at 31–32 (cleaned up). But
there need not be a formal agreement to commit the battery; “act[ing] tortiously pursuant to a tacit
agreement to assault or batter” the victim is enough to state a claim. Scollo, 60 A.D.3d at 840. And
unlike in the sole case Deutsche Bank cites, where the plaintiff alleged merely that the defendant
“harbored a dangerous person” or gave “tacit approval,” Shea v. Cornell Univ., 192 A.D.2d 857,
858 (N.Y. App. Div. 1993), the FAC includes extensive overt acts that Deutsche Bank took to
further the sex-trafficking venture, as outlined above.
B. The FAC States a Claim for Intentional Infliction of Emotional Distress

(Count X).
The FAC states a claim for intentional infliction of emotional distress (“IIED”). “The
elements of intentional infliction of emotional distress are (1) extreme and outrageous conduct; (2)
the intent to cause, or the disregard of a substantial likelihood of causing, severe emotional distress;
31
(3) causation; and (4) severe emotional distress.” Eskridge v. Diocese of Brooklyn, 210 A.D.3d
1056, 1057–58 (N.Y. App. Div. 2022). Deutsche Bank’s conduct in facilitating and concealing
Epstein’s trafficking was extreme and outrageous, and caused Doe severe emotional distress.
Deutsche Bank first argues that Doe’s IIED claim is “duplicative” of her other counts.
MTD at 32. But a plaintiff “may plead claims that provide alternative bases for relief,” and “a
claim is alternative and not duplicative if a plaintiff may fail on one but still prevail on the other.”
In re Skat Tax Refund Scheme Litig., 356 F. Supp. 3d 300, 325 (S.D.N.Y. 2019); see also Fed. R.
Civ. P. 8(d)(2); Giuffre, 579 F. Supp. 3d at 452 (because “any risk of duplicative recovery may be
resolved by jury instructions . . . battery and IIED claims routinely proceed in tandem under New
York law”). Deutsche Bank also argues that Doe has not alleged the elements for an IIED claim,
but the FAC outlines extensive extreme and outrageous conduct that caused Doe’s emotional
distress: its efforts to further a long running sex-trafficking scheme and help cover it up. See FAC
¶¶ 546–54; supra at 11–14. Deutsche Bank’s real objection seems to be that its involvement in
Epstein’s sex trafficking was not so extreme as to justify an IIED claim, but that is an issue of fact
that cannot be decided on the pleadings. See, e.g., Matvejs v. Martin County Sheriff’s Office, 2006
WL 3755202, at *4 (S.D. Fla. 2006).10
10
The extreme and outrageous element of an intentional infliction of emotional distress claim
is satisfied where a plaintiff alleges a continuous nature of abusive conduct. Canosa, 2019 WL
498865, at *8; Bonner v. Guccione, 916 F. Supp. 271, 276–78 (S.D.N.Y. 1996) (entire course of
conduct alleged in the aggregate constituted IIED, not any given individual act); Turner v.
Manhattan Bowery Mgmt. Corp., 28 N.Y.S.3d 651, at *10 (Sup. Ct. 2015) (while each individual
act committed by defendants was not actionable, “when aggregated over time, the continuous
nature of the conduct may make it sufficiently outrageous that a jury could reasonably find in
plaintiffs’ favor on the emotional distress allegation”); Collins v. Willcox, Inc., 600 N.Y.S.2d 884,
886 (Sup. Ct. 1992) (same). For example, in Canosa, the court found an actionable IIED claim
based on plaintiff’s allegations of a “course of intimidating and abusive conduct by [the defendant]
spanning August 2010 to August 2017.” 2019 WL 498865, at *8. Just as in Canosa, here Deutsche
Bank’s actions, even if not actionable alone, in the aggregate present a claim for IIED.
32
C. The FAC States Two Claims for Negligence (Count XI–XII).
Finally, Doe has properly stated claims for both of her negligence counts. To state a claim
for negligence under New York law, Doe must plead “(1) a duty owed by the defendant to the
plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom.” David v. Weinstein
Co. LLC, 431 F. Supp. 3d 290, 305 (S.D.N.Y. 2019). Deutsche Bank argues that it owed no duty
to Doe and that the FAC fails to allege proximate cause. The Court should reject both arguments.
Any person or entity—including a bank—“ordinarily has a duty to exercise reasonable care
when the actor’s conduct creates a risk of physical harm.” Restatement (Third) of Torts: Phys. &
Emot. Harm § 7 (2010); see also § 19 (“The conduct of a defendant can lack reasonable care
insofar as it foreseeably combines with or permits the improper conduct of the plaintiff or a third
party.”); Reporter’s Note, Comment a; Stagl v. Delta Airlines, Inc., 52 F.3d 463, 469 (2d Cir.
1995); Ford v. Grand Union Co., 197 N.E. 266, 268–69 (N.Y. 1935) (citing favorably to
Restatement of Torts in extensive discussion of duties). While “[o]rdinarily a person owes no duty
to members of the public at large,” there is an “except[ion] to avoid injury to them by forces set in
motion by such person or those acting as his [or her] agents.” Ford, 197 N.E. at 269.
That is exactly what Doe has alleged: Deutsche Bank “set [the] forces [] in motion,” id.,
that injured Doe, as its financial support was critical to Epstein’s venture. The FAC makes clear
that his venture “was not possible” without Deutsche Bank, which could provide special treatment
to Epstein and ensure the venture’s continued operation and sex-trafficking of young women and
girls. FAC ¶ 32. Deutsche Bank provided Epstein’s sex-trafficking venture $200,000 per year in
cash (id. ¶ 321); concealed its delivery of cash to Epstein and his associates by willfully failing to
file reports (id. ¶ 324); structured cash withdrawals by Epstein’s co-conspirators to avoid alerting
authorities to suspicious transactions (id. ¶ 337); failed to implement oversight imposed by its
ARRC (id. ¶ 325); and allowed Epstein to use its accounts to send dozens of wires to known
33
Epstein co-conspirators (id. ¶¶ 212, 213). Because Deutsche Bank set these events into motion, it
had a duty to not cause harm to members of the public like Doe. Ford, 197 N.E. at 269.
Deutsche Bank contends that banks owe no duty to non-customers. MTD at 33. But one
New York court has stated: “We do not find case law to support the argument that . . . a bank can
never be held liable to non-customers and particularly when addressing allegations such as those
before us in this action.” Elmaliach v. Bank of China Ltd., 110 A.D.3d 192, 206 (N.Y. App. Div.
2013) (emphasis in original). Elmaliach illustrates how New York law recognizes a cause of action
against banks in appropriate cases. In Elmaliach, the plaintiffs were victims of terrorist attacks. Id.
at 195. They alleged that the acts of a Chinese bank were a proximate cause of their injuries in that
the bank facilitated the transfer of millions of dollars between terrorist leadership outside Israel
and their operatives, enabling acts of terrorism in Israel. See id. While the court ultimately applied
foreign law, it applied New York law in recognizing that a bank may owe a duty to non-customers
in certain situations. Id. at 206 (“[A] tortfeasor’s compliance with relevant laws and regulations
will not insulate it from liability if it fails to act objectively reasonably.”); id. at 207 (“Although
New York does not generally recognize a duty on the part of banks to non-customers, that does
not mean that New York policy would prohibit recovery under the alleged facts, if proven.”).11
Other courts have also recognized that banks can face tort liability to non-customers in
non-routine cases. See, e.g., Licci v. Am. Exp. Bank Ltd., 704 F. Supp. 2d 403, 410 (S.D.N.Y. 2010)
(suggesting that bank could be liable for negligence relating to terrorist attacks if plaintiff alleged
bank “had any ties to Hezbollah, or that they knew or had reason to believe that the monies at issue
11
As this Court has explained, “[w]here the New York Court of Appeals has not ruled on
an issue, federal courts are bound to apply the law as interpreted by a state’s intermediate appellate
courts unless there is persuasive evidence that the state’s highest court would reach a different
conclusion.” Rodland v. Judlau Contracting, Inc., 844 F. Supp. 2d 359, 363 (S.D.N.Y. 2012).
Deutsche Bank’s motion fails to cite any New York state authority regarding bank liability. As a
result, there is no “persuasive evidence” to divert from the principles enunciated in Elmaliach.
34
would be used to carry out terrorist attacks on civilian targets”); cf. Midwest Feeders, Inc. v. Bank
of Franklin, 886 F.3d 507, 518 (5th Cir. 2018) (recognizing that under New York law the rule that
banks owe no due to a non-customer “is not without exception”).
The FAC carefully lays out precisely the type of non-routine situation that New York courts
would find imposes duties on a bank to non-customers. By way of just a few examples, Doe has
alleged that “[i]t was far from routine for Deutsche Bank to provide $200,000 per year in cash to
someone like Epstein, who did not have an apparent need for such extravagant sums. Moreover,
the circumstances in which Epstein was requesting such large amounts were far from routine and
raised numerous ‘red flags’—taking it well outside routine circumstances.” FAC ¶ 320. She also
alleges that, after providing cash to Epstein’s sex-trafficking venture, Deutsche Bank concealed
what it had done through such specific means as failing to file required reports with the government
and refusing to enforce oversight requirements over Epstein that it was pretending were in place.
Id. ¶¶ 324–28. These types of allegations are the exact type that the Elmaliach and Licci courts
were looking for in order to impose a duty on the bank.
Deutsche Bank’s causation arguments should be rejected as well. All of the proximate
cause cases it cites are distinguishable on the fact that Deutsche Bank did not provide routine
banking services and actually participated in the customer’s tortious and criminal conduct.
Moreover, while it tries to point the finger at Epstein as the true proximate cause, the law is clear
that there may be more than one proximate cause of an occurrence or injury. See Scurry v. New
York City Hous. Auth., 193 A.D.3d 1, 8–9 (N.Y. App. Div. 2021). Such is the case here.
CONCLUSION
The Court should deny Defendants’ Motion to Dismiss Doe’s FAC in its entirety.
35
Dated: February 21, 2023 Respectfully Submitted,
/s/ David Boies
David Boies
Andrew Villacastin
Boies Schiller Flexner LLP
55 Hudson Yards
New York, NY
Telephone: (212) 446-2300
Fax: (212) 446-2350
Email: [email protected]
Sigrid McCawley
Pro Hac Vice
Boies Schiller Flexner LLP
401 E. Las Olas Blvd., Suite 1200
Fort Lauderdale, FL 33316
Telephone: (954) 356-0011
Fax: (954) 356-0022
Bradley J. Edwards
Edwards Pottinger LLC
425 N. Andrews Ave., Suite 2
Fort Lauderdale, FL 33301
Telephone: (954) 524-2820
Fax: (954) 524-2822
Brittany N. Henderson
Edwards Pottinger LLC
1501 Broadway
Floor 12
New York, NY
Telephone: (954)-524-2820
Fax: (954) 524-2820
Paul G. Cassell
Pro Hac Vice
S.J. Quinney College of Law at the
University of Utah
383 S. University St.
Salt Lake City, UT 84112
36
Telephone: (801) 585-5202

Fax: (801) 585-6833
(institutional address for identification
purposes, not to imply institutional
endorsement)
Counsel for Plaintiff Jane Doe 1
37

Jane Doe Memorandum Opposing Dismissal of Case v. Deutsche Bank

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Jane Doe Memorandum Opposing Dismissal of Case v. Deutsche Bank

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Case 1:22-cv-10018-JSR Document 48 Filed 02/21/23 Page 1 of 46

UNITED STATES DISTRICT COURT

Jane Doe 1, individually and on behalf of

Deutsche Bank Akteingesellschaft, et. al.,

Jane Doe 1, individually and on behalf of

JPMorgan Chase Bank, N.A.,

PLAINTIFF JANE DOE 1’S MEMORANDUM OF LAW IN OPPOSITION TO MOTION

PRELIMINARY STATEMENT ................................................................................................. 1

I. DOE’S SETTLEMENT AGREEMENT DOES NOT WARRANT

1. Deutsche Bank Participated in the Sex-Trafficking Venture. ......................... 11

2. Deutsche Bank Benefited from its Participation in the Sex-Trafficking

a. Knowledge that Doe Was a Sex-Trafficking Victim .......................... 15

b. Knowledge of a Specific Sex-Trafficking Venture ............................ 18

1. Count III Properly Alleges Aiding and Abetting Liability. ............................ 21

2. Count IV Properly Alleges Conspiracy Liability............................................ 22

3. Count V Properly Alleges Attempt Liability. ................................................. 24

4. Count VI Properly Alleges Obstruction Liability. .......................................... 25

1. The FAC Alleges Predicate Offenses. ............................................................ 26

2. The FAC Alleges Participation in the Conduct of the Enterprise. .................. 27

3. The FAC Alleges RICO Injury. ...................................................................... 28

4. The FAC Alleges RICO Causation. ................................................................ 29

5. The FAC Alleges RICO Conspiracy............................................................... 29

B. The FAC States a Claim for Intentional Infliction of Emotional Distress

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C.S. v. Wyndham Hotels & Resorts, Inc.,

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Collins v. Willcox, Inc.,

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J.L. v. Best W. Int’l, Inc.,

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Kashef v. BNP Paribas S.A.,

Kashef v. BNP Paribas S.A.,

Keady v. J.P. Morgan Chase & Co.,

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Lateral Recovery, LLC v. Cap. Merch. Servs., LLC,

Licci v. Am. Exp. Bank Ltd.,

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M.A. v. Wyndham Hotels & Resorts, Inc.,

Matvejs v. Martin County Sheriff’s Office,

Midwest Feeders, Inc. v. Bank of Franklin,