Document

FILED: NEW YORK COUNTY CLERK 02/16/2018 11:27 AM INDEX NO.
656779/2017
NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 02/16/2018
SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY
----------------------------------------------------------------------X
GEORGE OUZOUNIAN, P/K/A MADDOX, and
JESSICA BLUM,
Index No. 656779/2017
Plaintiffs’, Hon. Charles E. Ramos
Motion Seq. # 5
- against -
DAX HERRERA P/K/A DICK MASTERSON,

FOUNDATION DIGITAL, LLC,
GREG BOSER, LOREN BAKER,
CMGRP, INC., D/B/A WEBER SHANDWICK,
JOSHUA KAUFMAN, ASTERIOS KOKKINOS,
TREVOR BIRT, PATREON, INC., and
JORDAN COPE,
Defendants.
----------------------------------------------------------------------X
PLAINTIFFS’ MEMORANDUM OF LAW IS SUPPORT OF MOTION FOR A

TEMPORARY RESTRAINING ORDER, PROTECTIVE ORDER, AND INJUNCTIVE
RELIEF, PURSUANT TO CPLR §6313, GENERAL BUSINESS LAW §§ 349-350, CIVIL
RIGHTS LAW §§ 50-51
The Landau Group, PC

45 Rockefeller Plaza, Suite 2000
New York, New York 10111
(212) 537-4025
Attorneys for Plaintiffs’ George Ouzounian and Jessica Blum
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FILED: NEW YORK COUNTY CLERK 02/16/2018 11:27 AM INDEX NO. 656779/2017
TABLE OF CONTENTS
PAGE(S)
TABLE OF AUTHORITIES CITED i
I. PRELIMINARY STATEMENT. 1
II. STATEMENT OF APPLICABLE FACTS. 2
a. Actions Taken By Herrera Against Plaintiffs’ Subsequent To

The Instant Lawsuit Being Filed 2
b. DEFAMATION AND THREATS AGAINST KEVIN A. LANDAU, ESQ.,

AND THE LANDAU GROUP, PC, LAW FIRM. 8
III. A TEMPORARY RESTRAINING ORDER (OR PROTECTIVE ORDER)

AGAINST DEFENDANT HERRERA, RESTRAINIG HIM FROM
MAKING ANY EXTRA JUDICIAL STATEMENTS ABOUT THIS
CASE, OR ABOUT PLAINTIFFS’, OR COUNSEL FOR PLAINTIFFS’,
OR HIS LAW FIRM, OR REFERRING TO COUNSEL FOR
PLAINTIFFS, OR POSTING ANY INFORMATION, DOCUMENTS,
OR STATEMENTS ABOUT HIM, OR PLAINTIFFS’ ON ANY SOCIAL MEDIA,
WHATSOEVER, IS APPROPRIATE IN THIS CASE,
GIVEN DEFENDANT HERRERA’S DEFAMATORY
STATEMENTS, POSTING OF PRIVATE INFORMATION OF
PLAINTIFFS AND THEIR COUNSEL, AND OTHER APPALLING,
RETALIATORY, AND VINDICTIVE CONDUCT AGAINST
PLAINTIFFS’ AND THEIR COUNSEL. 9
(i) This is Not a Prior Restraint. 10
IV. PLAINTIFFS MEET THE REQUIREMENTS FOR THE ISSUANCE OF

A PRELIMINARY INJUNCTION UNDER SECTIONS 349 AND 350 OF
THE GENERAL BUSINESS LAW. 14
1. Defendants’ Deceptive Acts and False Advertising Were

“Consumer-Oriented” in New York. 15
2. Defendant Herrera’s Deceptive Acts Were Materially Misleading. 17
3. Plaintiffs Each Suffered an Injury as a Result of Defendant

Herrera’s Deceptive Acts and False Advertising. 18
4. Plaintiffs May Satisfy the Irreparable Injury Requirement by Demonstrating Irreparable

Harm In the Future. 19
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5. The Balances of Equities Tips in Favor of Plaintiffs. 21
6. Plaintiffs Are Likely to Succeed on the Merits. 22
V. PLAINTIFFS MAY ALSO SEEK INJUNCTIVE RELIEF FOR

HERRERA’S VIOLATIONS OF CIVIL LAW §§ 50-51. 22
VI. CONCLUSION/RELIEF REQUESTED 25
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TABLE OF AUTHORITIES CITED

CASES PAGE(S)
Barrows v. Rozansky, 111 A.D.2d 105, 108 (1st Dept. 1985) 25
Blumenthal v. Picture Classics, Inc., 257 N.Y.S. 800 (1st Dept. 1932) 23
Cantrell v. Forest City Pub. Co., 419 US 245, 253 (1974) 13
City of New York v. Smokes-Spirits.Com, Inc., 12 N.Y.3d 616, 623 (2009) 16
Cohen v. JP Morgan Chase & Co., 498 F.3d 111, 126 (2d Cir. 2007) 17
Cox v. State of Louisiana, 379 U.S. 559, 583 (1965) 10
Craig v. Harney, 331 U.S. 367, 394 (1947) 10
Doe v. Axelrod, 73 N.Y.2d 748, 750 (1988) 14
Durgom v. Columbia Broadcasting Systems, Inc., 214 N.Y.S.2d 752 (1st Dept. 1961) 23-24
Exxonmobil Inter-Am. v. Advanced Info. Eng’g Servs. Inc.,

328 F. Supp. 2d 443, 449 (S.D.N.Y. 2004) 16
Four Times Square Assoc., L.L.C. v. Cigna Investments, Inc.,

764 N.Y.S.2d 1, 3 (1st Dep’t 2003) 21
In re Application of Dow Jones & Company, Inc., et. al.,

842 F.2d 603, 607 (2nd Cir. 1988) 12
Jiggets v. Perales, 202 A.D.2d 341, 342 (1st Dep’t 1994) 15
Leviston v. Jackson, 980 N.Y.S.2d 716, 719 (1st Dept. 2013) 23-24
Loftus v. Greenwich Lithographing Co., 182 N.Y.S. 428 (1st Dept. 1920) 23
LoRiggio v. Sabba, 69 A.D.3d 446, 448 (1st Dept. 2010) 26
Ma v. Lien, 198 A.D.2d 186, 187 (1st Dep’t 1993) 21
Marcus v. Jewish Nat’l Fund, 158 A.D.2d 101 (1st Dept. 1990) 15, 19-20
Mountz v. Global Vision Prods., 3 Misc. 3d 171, 177 (Sup. Ct. N.Y. Cty. 2003) 18
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M.V.B. Collision v. Allstate Ins., 728 F.Supp.2d 205, 220 (EDNY 2010) 16
Myers v. U.S. Camera Pub. Corp., 9 Misc.2d 765, 768 (1957) 24
New York State Broadcasters Assn. v United States, 414 F.2d 990, 997 (2nd Cir. 1969) 13
Nobu Next Door LLC v. Fine Arts Hous., Inc., 4 N.Y.3d 839, 840 (2005) 15
Ohralik v. Ohio State Bar Ass’n, 436 US 447, 456 (1978) 11-12
Onassis v. Christian Dior-New York, Inc., 472 N.Y.S.2d 254, 258 (NY.Sup.Ct. 1984) 23-24
Oswego v. Marine Midland Bank, 85 N.Y.2d 20, 27 (1995) 16
Patterson v. State of Colorado ex rel. Attorney General, 205 U.S. 454, 462 (1907) 10
Pennekamp v. State of Florida, 328 U.S. 331, 347 (1946) 10
People v. Buttafucoco, 599 N.Y.S.2d 419, 423 (NassauCty.Ct. 1993) 14
People v. Munn, 688 N.Y.S.2d 384, 386 (Queens.Cty.Crim.Ct.1999) 14
People v. National Home Protection, Inc.,

2009 Slip. Op. 32880U, at *5-6 (Sup. Ct. N.Y. Cty. Dec. 8, 2009) 18
People v. P.U. Travel, 2003 N.Y. Misc. LEXIS 2010, (Sup. Ct. NY Cty. June 19, 2003) 15
People v. Romero, 91 N.Y.2d 750, 756 (1998) 19
People v. Shack, 86 N.Y.2d 529, 536 (1995) 14
People v. Telehublink, 301 A.D.2d 1006, 1009-10 (3d Dep’t 2003) 18
Quinn v. Aetna Life and Cas. Co., 96 Misc.2d 545, 554 (Queens.Cty.Sup.Ct.1978) 11-13
Ryan v. Volpone Stamp Co., Inc., 107 F.Supp.2d 369, 391 (SDNY 2000) 23-24
Securitron Magnalock Corp. v. Schnabolk, 65 F.3d 256, 264 (2d Cir 1995) 16
Sheppard v. Maxwell, 384 US 333, 351 (1966) 10
Smith v. Smith, 24 A.D.3d 822, 823 (3rd Dept. 2005) 14
Spagnola v. Chubb Corp., 574 F.3d 64, 74 (2d Cir. 2009) 18
ii
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State v. Colo. St. Christian College of the Church of the Inner Power,
346 N.Y.S.2d 482, 487 (Sup. Ct. N.Y. Cty. 1973) 19
State v. Van Duyne, 43 NJ 369 (1964) 10
Stutman v. Chemical Bank, 95 N.Y.2d 24, 29 (2000) 15
Vacco v. Lipsitz, 663 N.Y.S.2d 468, 476 (1st Dept. 1997) 17
Wood v Georgia, 370 U.S. 375, 396 (1970) 12
Woody Allen v. National Video, Inc., 610 F.Supp. 612 (SDNY 1985) 24
STATUTES AND COURT RULES
Civil Rights Law §§ 50-51 1, 17, 21-23
C.P.L.R. § 6301 1, 19
GBL §§ 349-350 1, 14-15, 19, 21
Penal Law §120.45(3) 14
Penal Law 135.60(5) 13
Penal Law § 240.30 14
iii
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Plaintiffs’ George Ouzounian (p/k/a Maddox) (hereafter, “Ouzounian”) and Jessica Blum
(“Blum”) (collectively, “Plaintiffs”), through their attorneys the Landau Group, PC, respectfully
submit this Motion for a Protective Order, Temporary Restraining Order, and injunctive relief,
pursuant to CPLR §6313, Civil Rights Law §§ 50-51, General Business Law §§ 349-350, against
Defendant Dax Herrera.
I. PRELIMINARY STATEMENT.
As set forth in the attached affidavits, and the exhibits annexed thereto, there has
unquestionably been violations of Civil Rights Law §§ 50-51 by Defendant Herrera, against
Plaintiffs’, and their counsel, that require court intervention, and a temporary restraining order.
Subsequent to Defendant Herrera being served in this matter, entering stipulations for time
extensions, and then filing his pending Motion to Dismiss, Herrera has persisted with vindictive
and hateful campaigns, threats, and other tortious and defamatory actions against Plaintiffs’.
(Landau Aff., at ¶ 7.) However, such harassment and threats, has now extended to Plaintiffs’ lead
counsel, Kevin A. Landau, and his law firm, The Landau Group, PC. This has manifest in
Defendant Herrera’s defamatory statements against counsel for Plaintiffs’, and threatening to
release private information of an attorney in this case, to his fans, as content for his show, and
solely because he represents the Plaintiffs. (Landau Aff., at ¶ 8.) When the forgoing came to Mr.
Landau’s attention, two separate letters were drafted and electronically mailed to Ms. Matz, Esq.,
counsel for Defendant Herrera. The second letter contained a Cease and Desist, which
demanded Defendant Herrera’s compliance by on or before February 10, 2018 at 3pm ET.
However, the documents, slurs, encouragements of fan outbursts and overall intimidation
techniques against Mr. Landau, remain at the time of this Affirmation’s submission. (Landau
Aff., at ¶ 9.)
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Inclusive with Mr. Landau’s letters and Cease and Desist notice, were over 50 pages of
content that Herrera has created and engaged in since November 14, 2017 (set forth more fully
below), the date of service of the complaint. This includes, but is not limited to: defamation,
invasion of privacy, constant harassment, posting of private information, intimidation,
retaliation, slanderous comments and offensive references, inciting and encouraging Herrera’s
fans to troll, insult and demean, numerous defamatory, racist, and threatening posts and
messages, including targeting Plaintiffs’ counsel, and posting multiple defamatory statements,
and threatening and actually posting private information and documents of counsel for
Plaintiffs’, designed to humiliate, retaliate, and damage his reputation and interfere with his
relationship with his clients, the court and this underlying lawsuit. (See annexed hereto as
Exhibit Three, letters sent to counsel for Defendant Herrera, on February 9, 2018.) (Landau
Aff., at ¶ 10.)
Despite these letters, and the over 50 pages of defamatory and harassing content made by
Herrera and sent to his counsel Ms. Matz. Herrera, has not stopped his harassment against
Plaintiffs’ or their counsel, nor taken any content down. (Landau Aff., at ¶ 11.) It is apparent that
Defendant is not heeding the advice of his counsel. Consequently, the Court must now intervene
and restrain Defendant Herrera from this abhorrent conduct immediately. (Landau Aff., at ¶ 12.)
II. STATEMENT OF APPLICABLE FACTS.
a. Actions Taken By Herrera Against Plaintiffs’ Subsequent To The Instant Lawsuit

Being Filed
On January 27, 2018, Herrera posted a picture of himself purchasing guns and ammunition
with the caption “picking up some anti-Maddox protection.” (See Exhibit Four.) This image
was posted on Instagram, Facebook and Reddit and is clearly an intimidation tactic. In response
to a fan, Herrera states that he ran this post by his lawyers, and they told him not to post it.
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(Landau Aff., at ¶ 13.) On February 2, 2018, Herrera made another post holding a loaded assault
rifle, and wearing a t-shirt with whales on it, acknowledging it as a reference to Mr. Ouzounian’s
book. (See Exhibit Five.) Herrera’s fans are now openly suggesting he use violence at
Ouzounian. (Landau Aff., at ¶ 14.)
On or about January 31, 2018, Herrera made a post, and harassed Mr. Ouzounian by referring
to him as a “soyboy” which is a slur used similar to “cuckold” and “faggot.” It was meant to
emasculate Mr. Ouzounian since people who eat soy have higher levels of estrogen and are
women. He posted this to also promote his own show and channel when people click on his
name. (See Exhibit Six.) (Landau Aff., at ¶ 15.)
In a subsequent post, made by “Dr. Richard R. Ape” which abbreviates to “Dick Rape”,- ‘Dr.
Ape’ claims that Mr. Ouzounian caught genital herpes from Ms. Blum; and that she had sex with
other men “regularly” in front of him. (Exhibit Seven.) (Landau Aff., at ¶ 16.)
On February 2, 2018, Herrera posted a picture of Mr. Ouzounian on his official Facebook
page further attacking his image, and suggesting that he is autistic, and attacking autistic people
in general, as the “Temple of Grandin’s hug machine” is a blanket that’s used to comfort autistic
people. (See Exhibit Eight.) (Landau Aff., at ¶ 17.)
On December 31, 2018, Herrera made a post and called Mr. Ouzonian “mentally deranged.”
(See Exhibit Nine.) (Landau Aff., at ¶ 18.)
On December 5, 2017, Herrera commented on a popular picture of Birt/Madcucks and said it
was actually Mr. Ouzounian to create brand confusion: “Yes. This Maddox.” (See Exhibit 10.)
(Landau Aff., at ¶ 19.)
On January 7th and 11th, 2018, respectively, Herrera engaged in targeted harassment on his
official Internet Relay Chat server, one of his fans wrote the following on January 11:
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On January 11, 2018:
(See Landau Aff., at ¶ 20.)
On November 15, 2017, someone impersonating Mr. Ouzounian made rape threats to Ms.
Blum on her YouTube channel, and claimed that she gave Mr. Ouzounian herpes, and stated
other disgusting and vile things. (See Exhibit 11.) (Landau Aff., at ¶ 21.)
On November 15, 2017, one of Herrera’s regular fans said that if Herrera experiences any
repercussions, that they, including Herrera, will go “full on harassment against [Ouzounian]” and
that “things will get much, much worse for him. (See Exhibit 12.) (Landau Aff., at ¶ 22.)
On December 8, 2017, someone on Herrera’s subreddit created an account impersonating
Mr. Ouzounian. He dug up old divorce records of Ouzounian’s and shared them online for the
sole purposes to harass and humiliate. (See Exhibit 13.) (Landau Aff., at ¶ 23.)
On December 23, 2017, Defendant Birt/Madcucks, stated on Reddit that he’s buying Mr.
Ouzounian’s book to intentionally leave a fake negative review. (See Exhibit 14.) (Landau Aff.,
at ¶ 24.) On January 8, 2018, Herrera’s fans on Facebook ran a brute-force intrusion attack to
scrape all the directories and files on Mr. Ouzounian’s web server. They found some private
images of an acquaintance of Ouzounian’s, as well as a file containing passwords and private
server information. (See Exhibit 15.) The IP addresses listed in Exhibit 15 tried accessing Mr.
Ouzounian’s private files from Herrera’s subreddit. Herrera’s fans started sharing the picture of
his acquaintance above, and over 1,266 requests have been logged from an IP address linking to
this file from The Dick Show Facebook group as well as Herrera’s subreddit, where they
archived the stolen image annexed hereto as Exhibit 15. The IP ADDRESS: was 178.79.138.22 -
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li194-22.members.linode.com. This server, linode.com, is one Herrera has used in the past to
host assets for Plaintiff Ouzounian’s old show, and is likely linked to Herrera himself, or
Defendant Foundation Digital. (Landau Aff., at ¶ 26.) One of Herrera’s fans, Scott Severin,
messaged the picture to Mr. Ouzounian to intimidate and harass him. (See Exhibit 15.) (Landau
Aff., at ¶ 27.)
Mr. Ouznian has started creating an IP block on any request for his private data from his
subreddit, however, Herrera and his fans have decided to continue interfering with Mr.
Ouzounian by going to public access locations like libraries, coffee shops and even camping
outside his house to make him block more people than intended. (Landau Aff., at ¶ 28.)
One of his fans even suggested going to Mr. Ouzounian’s house and coffee shops he
frequents to get him to ban his own IP address (from January 9, 2018):
(Landau Aff., at ¶ 29.)
On January 25, 2018, Defendant Birt/Madcucks read a letter Mr. Ouzounian wrote to his ex-
girlfriend that she found and provided to Herrera. Herrera teased this letter for months on his
podcast and charged money for people to hear it read at his live show in Chicago on December 2,
2017. (See Exhibit 16.) (Landau Aff., at ¶ 30.)
On December 5, 2017, several of Herrera’s fans spammed the following comment on Mr.
Ouzounian’s videos on YouTube: “hey, just letting you know, in case you weren't aware, that
Maddox is a scumbag who is suing people for calling him names and censoring any mention of
the lawsuit from any and all of his social media pages. As a listener of his I feel you deserve to
be informed.” (See Exhibit 17.) (Landau Aff., at ¶ 31.)
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On November 14, 2017, Herrera emailed Mr. Ouzounian, his friend and colleague
Michael Malice, and his book editor Jeremie Ruby-Strauss as soon as he was served on Nov 14,
2017, with the Summons and Complaint. He did this to humiliate Mr. Ouzounian and to strain
his relationship with Mr. Ruby-Strauss. (See Exhibit 18.) (Landau Aff., at ¶ 32.)
On December 28, 2018, Nick Rekieta, a lawyer, and friend of Herrera’s, who appears on his
show, and has been creating hours of analysis of this lawsuit, personally harassed Mr. Ouzounian
on his YouTube channel with several comments. Here’s one such comment also attacking one of
Mr. Ouzounian’s sponsors, HelloFresh:
(Landau Aff., at ¶ 33)
It is unclear if Mr. Rekieta is associated with Herrera’s defense team, however, he has since
appeared on Herrera’s podcast, and has created his own You Tube channel, solely to provide
negative commentary about it, and Plaintiffs’ counsel. (Landau Aff., at ¶ 33.)
On December 27, 2018, Defendant Birt/Madcucks commented on Mr. Ouzounian’s YouTube
video several times and called him a “fucking retard.” (See Exhibit 19.) (Landau Aff., at ¶ 35.)
On January 16, 2018, on Episode 85 of his podcast, Herrera attacked his own lawyer, and
demeaned her for being a female attorney:
Herrera/Dick Masterson: So I shot an email off to my attorney, who is a woman. Who is a

woman because that's how little I respect Maddox's lawsuit. She's listened to the show, too.
Herrera/Dick Masterson: Look, if I was getting sued for something I did, I'd get a man to
defend me, obviously. (Landau Aff., at ¶ 36.) (See Ex. 20.)
As indicated above, Herrera has indicated in multiple posts, and in this podcast, that he has
consulted with his defense counsel about said posts, and that she was aware of them, and has
listened to his show. (Landau Aff., at ¶ 37.)
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On January 2, 2018, on Episode 83 of Herrera’s podcast, he read private chat transcripts that
a fan named Isais Lozano (aka, Wauterboi) "leaked" to him. Lozano had posed as a curious and
sympathetic fan/friend to Mr. Ouzounian, only to turn around and share his private
conversations--including mental health issues his family had dealt with, Ms. Blum’s mom's
surgery and other private details--with Herrera. Herrera read these comments for the sole
purposes to humiliate, harass and profit from, since such Mr. Herrera charges for such content as
depicted on his January 2, 2018 show, Episode 83. (Relevant Transcripts from this show are
included in Ex. 20.) (Landau Aff., at ¶ 38.)
Herrera is trying to incite his fans. He understands that by getting his fans to invest
themselves in a bet, some may be motivated to act out against Maddox to win. This is the
second time he's announced a death pool. This fits the pattern of his interference into Mr.
Ouzounian’s private life and affairs by publicly rewarding Lozano for his leaks and betrayal and
encouraging other fans with "dirt on Maddox" to provide it to Herrera with more leaks if
possible. (Landau Aff., at ¶ 39.)
On January 25, 2018, Herrera defames Plaintiff Ouzounian, incites his fans, who appear to be
anticipating and plotting Ouzounian’s suicide, even suggesting that Herrera will turn it into more
content for his show. (See Ex. 21.) (Landau Aff., at ¶ 40.) Herrera’s fans have multiple suicide
pools where they encourage and coordinate harassment for Ouzounian to kill himself. Mr.
Ouzounian receives these and similar messages from Herrera’s fans. (Landau Aff., at ¶ 41.)
On January 25, 2018, Herrera attacked Mr. Ouzounian’s recent book after he incited his fans
to leave negative reviews, and after Mr. Ouzounian had tried to explain some of those reviews to
his fans in his mailing list. (See Ex. 22.) (Landau Aff., at ¶ 42.) In the example below, Herrera
encourages his fans to harass Ouzounian. One of Herrera’s fans suggested that they should all
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“spam [Ouzounian’s] fucking podcast voicemail” and that if he changes the number, they’ll
spam the new one too. Herrera responds and tacitly encourages it saying, “it would be nice to get
an explanation out of him.” (Landau Aff., at ¶ 43.)
b. DEFAMATION AND THREATS AGAINST KEVIN A. LANDAU, ESQ., AND

THE LANDAU GROUP, PC, LAW FIRM.
Herrera recently created a Twitter page, in January of 2018, under the handle “The 20
Million Dollar Man @ stand with dick.” The sole purpose of this page is to defame and injure
counsel for Plaintiffs’, and incite and encourage others to do the same, and to find private
documents and information, on Plaintiffs’ counsel, Kevin A. Landau, Esq., and his law firm, The
Landau Group, PC. (See Ex. 23, pages from said Twitter page.) (Landau Aff., at ¶ 44.) On
February 5, 2018, Herrera tweeted:
“Nick Rekieta will be live-streaming himself taking a big shit on Maddox and his Dumb
Fuck Dog Bite attorney.”
“…Dying Maddox and Dogbite Landau’s latest legal limp-dickery…”
“Apparently, Dying Maddox and Dogbite Landau were crafting their shit response to their
shit LOLSUIT today.” (See Ex. 23.) (Landau Aff., at ¶ 45.)
On February 7, 2018, Herrera tweeted that he would be releasing private information and
documents to his fans related to Mr. Landau, stating as follows:
“Uh oh! The GOSS Demons have just showed up at my place with their pizza oven and
a special recipe involving Dog Bite Kevin Landau! I wonder what they’re cooking
up….(See Ex. 23.) (Landau Aff., at ¶ 46.)
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On February 8, 2018, in response to a fan finding and tweeting private documents and
information about Mr. Landau, Herrera responds: “God Bless you.” (See Ex. 23.) (Landau Aff.,
at ¶ 47.)
On February 5, 2018, Herrera even tweeted about this Court, and Your Honor, being
assigned to his case, with a link to website to where people purportedly write reviews of
judges. (See Ex. 23.) (Landau Aff., at ¶ 48.)
On his Patreon page, for Episode 88, of his podcast, Herrera, states, as follows: “Dying
Maddox and his hype man/attorney ‘Dog Bite’ Kevin Landau, possibly the dumbest lawyer on
Earth.” (See Ex. 24.) (Landau Aff., at ¶ 49.)
On Bonus Episode 18, of Herrera’s podcast, on November 16, 2017, Herrera and a guest or
his co-host – “Sean” - were discussing this lawsuit, and counsel for Plaintiffs, and Sean, stated
that “a fucking retard probably wrote it” “From the mind of someone who is not mental – who is
sick. He has a mental problem. He is mentally disabled.” (Time Code 13:24-14:10). (Landau
Aff., at ¶ 50.) On Episode 77, of Herrera podcast, on November 20, 2017, Herrera defamed
counsel for Plaintiff, and stated that Plaintiff had “got[ten] a dog bite lawyer” who was worse
than an ambulance chaser. (Time Code 9:41.) (Landau Aff., at ¶ 51.)
On February 15, 2018, Defendant Herrera actually disclosed counsel for Plaintiffs’ private
information, including his former address, date of birth, and court records, to his fans, by sending
out a tweet, indicating that he would be recording a bonus episode about said records and
information. (See Ex. 25.)
III. A TEMPORARY RESTRAINING ORDER (OR PROTECTIVE ORDER)

AGAINST DEFENDANT HERRERA, RESTRAINIG HIM FROM MAKING ANY
EXTRA JUDICIAL STATEMENTS ABOUT THIS CASE, OR ABOUT PLAINTIFFS’,
OR COUNSEL FOR PLAINTIFFS’, OR HIS LAW FIRM, OR REFERRING TO
COUNSEL FOR PLAINTIFFS, OR POSTING ANY INFORMATION, DOCUMENTS,
OR STATEMENTS ABOUT HIM, OR PLAINTIFFS’ ON ANY SOCIAL MEDIA,
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WHATSOEVER, IS APPROPRIATE IN THIS CASE, GIVEN DEFENDANT

HERRERA’S DEFAMATORY STATEMENTS, POSTING OF PRIVATE
INFORMATION OF PLAINTIFFS AND THEIR COUNSEL, AND OTHER
APPALLING, RETALIATORY, AND VINDICTIVE CONDUCT AGAINST
PLAINTIFFS’ AND THEIR COUNSEL.
(i) This is Not a Prior Restraint.
The undeviating rule of this Court was expressed by Mr. Justice Holmes over half a century
ago in Patterson v. State of Colorado ex rel. Attorney General, 205 U.S. 454, 462 (1907):
‘The theory of our system is that the conclusions to be reached in a case will be induced only
by evidence and argument in open court, and not by any outside influence, whether of private
talk or public print.’ See Sheppard v. Maxwell, 384 US 333, 351 (1966).
Freedom of discussion should be given the widest range compatible with the essential
requirement of the fair and orderly administration of justice.’ Pennekamp v. State of Florida, 328
U.S. 331, 347 (1946); Sheppard, 384 US at 350-351. But it must not be allowed to divert the trial
from the ‘very purpose of a court system * * * to adjudicate controversies, both criminal and
civil, in the calmness and solemnity of the courtroom according to legal procedures.’ Id citing
Cox v. State of Louisiana, 379 U.S. 559, 583 (1965) (Black, J., dissenting)..
‘The right of the people to have a free press is a vital one, but so is the right to have a calm
and fair trial free from outside pressures and influences. Every other right, including the right of
a free press itself, may depend on the ability to get a judicial hearing as dispassionate and
impartial as the weakness inherent in men will permit.’ State v. Van Duyne, 43 NJ 369 (1964)
citing Craig v. Harney, 331 U.S. 367, 394 (1947).
In the instant case, neither Plaintiffs, nor their counsel, are seeking a protective order or “gag
order” restraining the press, or any news media coverage of this case. Further, Plaintiffs’ are not
requesting that any pleadings or motions, or any other documents filed with the Court be sealed.
Instead, Plaintiffs’, and their counsel, are seeking a gag order restraining Defendant Herrera,
from making and encouraging any extra judicial statements about this case, or about plaintiffs’,
or about counsel for plaintiffs’, or his law firm, or discussing this case, or referring to the
10
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Plaintiffs’, or counsel for Plaintiffs’, on his podcast or any other social media, and from
restraining Defendant Herrera from posting and encouraging the publication of any information,
documents, or statements about Plaintiffs’ or their counsel, on any social media, whatsoever.
Defendant Herrera is targeting counsel for Plaintiffs, harassing him, constantly making
defamatory statements against him on his show, and website, and throughout social media, and
encouraging others to do the same, in an attempt to encourage and incite his fans to target
counsel for Plaintiffs, and engage in an online harassment campaign similar to the ones alleged
in the complaint. Herrera is doing this to profit, but also because he is clearly a vindictive
person, and dead set on retaliating against counsel for Plaintiffs for filing the instant lawsuit and
representing Plaintiffs’ in this matter. Therefore, Herrera is waging this war against Plaintiffs’
counsel to profit and interfere with counsel’s relationship with Plaintiffs’ and/or to try and get
counsel to withdraw from this case; and/or because he simply takes pleasure in humiliating other
people, or engaging in actions for which he feels there are no consequences.
There is no room in litigation for this type of behavior, and Herrera’s targeting of Plaintiffs’
counsel is reprehensible, and is afforded no protection under the First Amendment.
“From this line of reasoning, it is clear that while commercial speech is “protected” under the
First Amendment from prior restraint, the protection afforded is less than that provided for
noncommercial speech, so that when commercial expression is false or misleading it is afforded
no protection whatsoever.” See Quinn v. Aetna Life and Cas. Co., 96 Misc.2d 545, 554
(Queens.Cty.Sup.Ct.1978); Ohralik v. Ohio State Bar Ass’n, 436 US 447, 456 (1978).
Numerous examples could be cited of communications that are regulated without offending
the First Amendment, such as employers' threats of retaliation for the labor activities of
employees. Ohralik, 436 US at 456. Further, a protective order in this case restraining Defendant
Herrera’s speech, is not a prior restraint of the media or press coverage. Instead, it is simply a
protective order restraining a trial participant from making any extra judicial statements about
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this case, or from speaking about Plaintiffs’ or their counsel, whatsoever. See In re Application
of Dow Jones & Company, Inc., et. al., 842 F.2d 603, 607 (2nd Cir. 1988) (“Gag” order
restraining trial participants from speaking with the press in criminal case arising from alleged
corruption by public officials in obtaining federal contracts was not a prior restraint on press in
violation of First Amendment; order was directed at trial participants rather than at press.)
The court again enunciated the principle that the State may intervene to protect the public
from harmful commercial speech in Ohralik, 436 U.S. at 462, by stating that:
“the State has a legitimate and indeed 'compelling' interest in preventing those aspects of
solicitation that involve fraud, undue influence, intimidation, overreaching, and other forms of
'vexatious conduct.'”
Throughout its history the Supreme Court has heard numerous cases involving a conflict
between free speech and fair trial. In each of such cases, the court employed a “balancing”
approach to assure that neither of these fundamental rights encroached too far upon the other.
“The right of free speech, strong though it may be, is not absolute; when the right to
speak conflicts with the right to an impartial judicial proceeding, an accommodation must
be made to preserve the essence of both.” (Wood v Georgia, 370 U.S. 375, 396 (1970).
In Quinn, 96 Misc.2d at 556, after undertaking an exhaustive discussion, the court discussed
a similar issue, as that of the instant case. In Quinn, certain insurance advertisements were at
issue, which the court noted: “do not direct their attention solely to the general public for
informational purposes only” and that “what [was] really at issue” was more than pretrial
publicity or trial reporting.” Id. Accordingly, the court found that despite the defendants' claims
that they were merely advocating tort law reform, there was the inescapable implication that the
advertisements were geared toward influencing jurors and potential jurors in their decision-
making process. Id at 556.
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As such, Quinn court found that the advertisements at issue, violated the State’s public
policy expressed in section 215.25 of the Penal Law relative to jury tampering.
“For that reason alone, the speech might properly be restrained as it has been held that the
press is not immune from statutes of general applicability.” Quinn, supra at 556 citing Dennis v
United States, 341 U.S. 494, 508, supra; Branzberg v Hayes, 408 U.S. 665, 691-692.)
More to the point is the reasoning stated in New York State Broadcasters Assn. v United
States, 414 F.2d 990, 997 (2nd Cir. 1969.)
“The real point here is that we are not primarily in the realm of ideas at all but are
chiefly concerned with speech closely allied with the putting into effect of prohibited
conduct.”
Here, this Court clearly has the authority to make such an order restraining Herrera from
making any extrajudicial statements about Plaintiffs’, but especially, about their counsel, and his
law firm. The Court also has a duty to take such precautionary safeguards, to prohibit such
conduct from further infecting this litigation, but also to protect the sanctity, of this court, and
members of the bar who have the honor of practicing in this Court, without fear that by doing so,
they may face threats, retaliation, and an online harassment campaign, waged by an opposing
party and his fans, simply for representing an adversary.
Herrera’s vindictiveness and conduct, against another party to a litigation – and their
attorneys – has no room in this Court, and is reprehensible under our civil legal system, as well
as our criminal law, and cannot be tolerated by this Court, and should be sanctioned and
restrained accordingly. Further, Defendant Herrera’s threats that he will release private
information of Plaintiffs’ counsel, as gossip or content for his show, and encouraging and
inciting his fans to do the same, is not only vindictive and retaliatory, but it is tantamount to
extortion or coercion in the 2nd Degree under Penal Law 135.60(5) (“Expose a secret or publicize
an asserted fact, whether true or false, tending to subject some person to hatred, contempt or
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ridicule.”) Further, Herrera’s constant harassment and threats towards Plaintiffs’, and their
counsel, likely violate Penal Law §120.45(3), and Penal Law § 240.30, respectively. Aggravated
harassment in the second degree may be committed by sending harassing or threatening
messages by e-mail. Smith v. Smith, 24 A.D.3d 822, 823 (3rd Dept. 2005). See People v. Munn,
688 N.Y.S.2d 384, 386 (Queens.Cty.Crim.Ct.1999) (Harassing and threatening message posted
on an Internet newsgroup was the type of communication prohibited by statute governing
aggravated harassment in second degree as it was initiated by electronic means, namely a
computer, attachable to telephones, and involved written communication directed at
complainant, whose name was included in posting on newsgroup.) Accordingly, Herrera has no
protections under the First Amendment for his repulsive conduct, and must come to an end
immediately:
“Constitutional free speech protections have never been thought to give absolute protection
to every individual to speak whenever or wherever he pleases, or to use any form of address in
any circumstances that he chooses; a person's right to free expression may be curtailed upon a
showing that substantial privacy interests are being invaded in an essentially intolerable
manner.” People v. Shack, 86 N.Y.2d 529, 536 (1995) (internal citations and quotations omitted).
In the instant case, based upon the abundant evidence submitted in support of this motion,
and the authority briefed above, it appears reasonably certain that Defendant Herrera’s
harassment, threats, conduct and statements present a reasonable likelihood of a serious and
imminent threat to the administration of justice, thus necessitating Court intervention at this time.
People v. Buttafucoco, 599 N.Y.S.2d 419, 423 (NassauCty.Ct. 1993).
IV. PLAINTIFFS MEET THE REQUIREMENTS FOR THE ISSUANCE OF A

PRELIMINARY INJUNCTION UNDER SECTIONS 349 AND 350 OF THE
GENERAL BUSINESS LAW.
The decision to grant a motion for a preliminary injunction is committed to the discretion of
the trial court. Doe v. Axelrod, 73 N.Y.2d 748, 750 (1988); Jiggets v. Perales, 202 A.D.2d 341,
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342 (1st Dep’t 1994). Preliminary relief is only appropriate where: (1) the moving party is likely
to succeed ultimately on the merits of its claim; (2) there exists the prospect of irreparable injury
if the provisional relief is withheld; and (3) the balance of equities tips in the moving party’s
favor. Nobu Next Door LLC v. Fine Arts Hous., Inc., 4 N.Y.3d 839, 840 (2005).
Because Plaintiffs are seeking a preliminary injunction pursuant to Sections 349 and 350 of
the GBL, the irreparable harm analysis in this case differs from a traditional preliminary
injunction analysis. Sections 349 and 350 on their face entitle private plaintiffs to seek
injunctive relief so long as they have suffered an injury as a result of a defendant’s deceptive acts
or false advertising. See GBL § 349(h). 1
Accordingly, courts have treated future irreparable harm to the public as sufficient to obtain
a preliminary injunction under Sections 349 or 350 of the GBL. See Marcus v. Jewish Nat’l
Fund, 158 A.D.2d 101, 105-06 (1st Dept. 1990). 2 Regardless of whether Plaintiffs are in fact
required to prove irreparable harm in this case, Plaintiffs can make such a showing. As
demonstrated herein, consumers will suffer irreparable injuries unless Defendants’ deceptive acts
and false advertising are enjoined. To prove that a practice was deceptive within the meaning of
Section 349, harmed consumers must show that (1) the act or practice was “consumer-oriented,”
(2) the act or practice was misleading in a material way, and (3) they suffered an injury as a
result of the deceptive act. Stutman v. Chemical Bank, 95 N.Y.2d 24, 29 (2000). Plaintiffs’
claims easily satisfy all three elements.
1. Defendants’ Deceptive Acts and False Advertising Were “Consumer-Oriented” in

New York.
1
(“[A]ny person who has been injured by reason of any violation of this section may bring an action in his own
name to enjoin such unlawful act or practice . . . .”.) (emphasis added); GBL § 350-e (“Any person who has been
injured by reason of any violation of section three hundred fifty or three hundred fifty-a of this article may bring an
action in his or her own name to enjoin such unlawful act or practice.”).
2
Certain courts in New York have further suggested that Section 349 of the GBL is such a broad remedial statute –
similar in nature to federal regulatory statutes – that a showing of irreparable harm is not even necessary to obtain an
injunction. See People v. P.U. Travel, 2003 N.Y. Misc. LEXIS 2010, at *8 (Sup. Ct. NY Cty. June 19, 2003).
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To be “consumer-oriented” – and therefore actionable – deceptive acts that are private in
nature must nevertheless have ramifications for the public at large. “[T]he ‘gravamen’ of a
section 349 claim [is] a ‘consumer injury or harm to the public interest.’” City of New York v.
Smokes-Spirits.Com, Inc., 12 N.Y.3d 616, 623 (2009) (quoting Securitron Magnalock Corp. v.
Schnabolk, 65 F.3d 256, 264 (2d Cir 1995)). Allegations that the acts complained of
“potentially affect similarly situated consumers]” are sufficient to show that deceptive acts have
ramifications for the public at large and warrant injunctive relief. Oswego v. Marine Midland
Bank, 85 N.Y.2d 20, 27 (1995). A deceptive practice or false advertisement will likely be
“consumer-oriented” if it is the standard practice of a given individual or company. See, e.g.,
Exxonmobil Inter-Am. v. Advanced Info. Eng’g Servs. Inc., 328 F. Supp. 2d 443, 449 (S.D.N.Y.
2004).
Here, as thoroughly examined herein, Herrera’s conduct since being served with this lawsuit
harms the public interest, and the parties in litigation in this courtroom. Further, in addition to the
recent acts of Herrera, outlined above, he also bought multiple targeted false advertising
campaigns on Reddit, and Facebook, targeting Plaintiff Ouzounian, and his fans directly, and
suggesting that Plaintiff Ouzounian’s fans should unsubscribe from his podcast. (Compl., at ¶
39-40.) This satisfies the “consumer oriented” element under GBL §§ 349-350. See M.V.B.
Collision v. Allstate Ins., 728 F.Supp.2d 205, 220 (EDNY 2010) (Evidence that automobile
insurance company had practice of dissuading or preventing consumers from using auto-body
shop, and that this practice had broad impact on consumers at large, i.e., any of company's
insureds who brought damaged car to shop for repairs, satisfied “consumer-oriented” element of
shop's claim against company.) Further, Defendants’ used similar harassment campaigns, and
trolling, against consumers, and Plaintiff Ouzounian’s sponsors. (See Compl., at ¶¶ 28, 76-77.)
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The deceptive acts and practices, and false advertising, that Herrera has engaged since being
served with this lawsuit, are clearly identified throughout this pleading and attached exhibits, as
well as contained within the Affirmation of Kevin Landau, Esq. Therefore, Defendant Herrera’s
actions towards Plaintiffs’ were and continue to be materially deceptive, and misleading business
practices, and directed at thousands of consumers, including Plaintiff Ouzounian’s fans, which
caused Plaintiffs’ substantial and ongoing harm and injuries. (Compl., ¶ 184-185.) See Vacco v.
Lipsitz, 663 N.Y.S.2d 468, 476 (1st Dept. 1997) (falsely advertising customer services and
disseminating fictitious testimonials over the Internet; such as disguised source of e-mail
messages to group members, was sufficient as basis for false advertising charge.)
Defendant Herrera’s various deceptive acts and practices were, and are, standard practice for
his business, as demonstrated by the foregoing, even after being sued, he continues these
practices unabated. All of these deceptive acts and practices, and false advertisements, were
designed to drum up business for his podcast, increase his fan base, to sell his book, and other
merchandise, as well as his road tour. It is a critical part of Defendant Herrera’s business plan
that these illegal practices be easily repeated to deceive numerous similarly situated customers –
since without the ability to disseminate their deceptive advertisements, hate, and false
information of Plaintiffs, it would be impossible for Defendants to find vulnerable consumers
online to fleece.
Given this confluence of factors, it is beyond cavil that Defendant Herrera’s deceptive
practices and false advertising were consumer-oriented.
2. Dax Herrera’s Deceptive Acts Were and Continue to Be Materially Misleading.
A practice is “misleading” if it is “‘likely to mislead a reasonable consumer acting reasonably
under the circumstances.’” Cohen v. JP Morgan Chase & Co., 498 F.3d 111, 126 (2d Cir. 2007).
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Defendants’ collection of hundreds of thousands of dollars in upfront fees for his podcast,
tours, merchandise, book, and other content created by Defendants’ “rapacious commercial
exploitation” of Plaintiffs’ name, image, photograph, and likeness violates Civil Rights Law
§§50-51, and should be treated no differently than the imposition of other illegal fees for false
advertising and misappropriation/invasion of privacy under Civil Rights Law §§50-51.
Here, as demonstrated above, and in Plaintiffs’ Complaint, the instant misappropriation by
Defendant Herrera is appalling, and has continued during this litigation, against Plaintiffs,
whereby he continues to harass, threaten, intimidate, and exploit Plaintiffs’ and their counsel; to
create content for his podcast, and other social media, and to retaliate against Plaintiffs and their
counsel, for filing the instant lawsuit against him.
3. Plaintiffs Each Suffered an Injury as a Result of Dax Herrera’s Deceptive Acts and
False Advertising.
For a deceptive act or false advertising claim to be actionable, the injury suffered must be a
loss independent of the initial deceptive act; monetary loss is sufficient to state an injury under
Section 349 of the GBL. Spagnola v. Chubb Corp., 574 F.3d 64, 74 (2d Cir. 2009).
As further elaborated above, and in Plaintiffs Complaint, Plaintiffs’ losses, include, but are
not limited to: a substantial increase in attorney fees and costs in this litigation, which have
significantly increased as a result of his instant threats, and harassment campaigns since being
served with this lawsuit, loss of fans, advertisers, loss of sponsorship and business, significant
emotional distress and mental anguish, and other costs and substantial time incurred defending
and protecting themselves from Herrera’s constant harassment, threats, defamation, trolling and
stalking, which has now interfered with Plaintiffs relationship with counsel, and forced them to
incur tens of thousands of dollars in additional attorney fees and costs.
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A preliminary injunction is available when plaintiffs can show that a defendant “threatens or
is about to do, or is procuring or suffering to be done, an act in violation of the plaintiff’s rights
respecting the subject of the action.” C.P.L.R. § 6301. Irreparable harm will redound to both
Plaintiffs and the public at large absent an order from this Court enjoining Defendant Herrera’s
deceptive and unlawful activities. Allowing Defendants to continue in their course of unlawful
conduct will irreparably injure citizens both inside and outside of the State of New York. See
People v. Romero, 91 N.Y.2d 750, 756 (1998) (“the Legislature by statute has authorized equity
to act and enjoin criminal behavior without the necessity of showing, in the individual case, that
the public health or welfare was in danger”).
4. Plaintiffs May Satisfy the Irreparable Injury Requirement by Demonstrating

Irreparable Harm In the Future.
In cases brought under Sections 349(h) and 350, Plaintiffs may satisfy the irreparable injury
requirement by demonstrating future injuries will accrue to the public. Because Plaintiffs are
functioning as private attorneys general, they are broadly empowered to protect the general
public against deceptive acts and practices, and false advertising. See Marcus, 158 A.D.2d at
105-06; State v. Colo. St. Christian College of the Church of the Inner Power, 346 N.Y.S.2d 482,
487 (Sup. Ct. N.Y. Cty. 1973). Marcus v. Jewish Nat’l Fund stands for the proposition that
future harm to the public at large is a sufficient basis for granting a preliminary injunction to
private plaintiffs under Sections 349 and 350 of the GBL. In Marcus, supporters of certain
groups whose aims included the development of Jewish life in both Israel and the territories
acquired during the Six Day War (past the so-called “Green Line”) asserted claims, inter alia,
under Sections 349 and 350 of the GBL against a non-profit fundraising organization. Plaintiffs
alleged that the defendant fundraising organization deceptively suggested in its advertising
materials that it would distribute its donations to areas over the “Green Line” in Israel when it, in
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fact, did not distribute donations in this area. On appeal, the First Department determined that the
plaintiffs had stated a valid cause of action under Sections 349 and 350. See Marcus, 158 A.D.
2d at 105. The court then ruled that plaintiffs had met all of the requisite elements for the
issuance of a preliminary injunction, and in particular focused on the irreparable harm element:
“Clearly, if [defendant] were allowed to persist in its deceptive practices, there would be a
significant risk that people would read defendant’s literature and contribute moneys under the
mistaken impression that their donations would be allocated to territories across the Green Line
and, thereby be irreparably injured.” Marcus, 158 A.D. 2d at 105-06.
The Marcus court expressly considered the future harm that would accrue to the public were
the defendant permitted to continue distributing its deceptive literature. The irreparable injury
was, therefore, not tied directly to the plaintiffs asserting claims. Rather, the court considered
irreparable harm to the public a sufficient harm to warrant granting the preliminary injunction.
Were Defendants permitted to continue their deceptive practices and false advertising, in
violation of Sections 349 and 350, the public would suffer significant irreparable injuries. Like
the donors in Marcus who made donations under the mistaken impression that they were being
used toward a specific purpose, here Plaintiffs have suffered a panoply of injuries, and their
entire lives have been turned upside down as a result of Herrera’s disgusting conduct. If
Defendant Herrera’s deceptive acts and practices are not enjoined, Plaintiffs, and other future
victims will be placed in substantial risk of suffering these same injuries, for which no adequate
remedy at law exists. These are precisely the kinds of irreparable injuries that Sections 349 and
350 were created to guard against and which warrant preliminary relief from this Court.
Finally, Marcus comports with the plain reading of Sections 349 and 350 of the GBL, which
authorize that the deceptive conduct at issue – Dax Herrera’s entire business model of accepting
upfront fees for his podcast, based on misappropriating Plaintiffs’ and that of their counsels’
name, image, and likeness, releasing their private information, and constantly defaming,
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threatening and harassing them, through internet mobs, who he directs to target Plaintiffs’ fans,
sponsors, family, and business associates, and in an attempt to destroy their lives and business,
interfere with their relationship with their attorneys, retaliate against them, and/or cause them to
suffer a nervous breakdown, or destroy their lives in the process, may be enjoined by any person
who has been the victim of these deceptive acts or practices, or false advertising. Further, as
demonstrated above, Herrera will not stop, and has increased his threats and harassment against
Plaintiffs, and their counsel, since being served with this lawsuit. Therefore, Plaintiffs’ have
clearly shown that a future harm will accrue if injunctive relief is not granted. GBL § 349 (h).
Four Times Square Assoc., L.L.C. v. Cigna Inv., Inc., 764 N.Y.S.2d 1, 3 (1st Dep’t 2003)
(holding that a “threat to [plaintiff’s] good will and creditworthiness” was sufficient irreparable
harm to warrant an injunction).
5. The Balances of Equities Tips in Favor of Plaintiffs.
Balancing the equities “simply requires the court to look to the relative prejudice to each
party accruing from a grant or a denial of the requested relief.” Ma v. Lien, 198 A.D.2d 186, 187
(1st Dep’t 1993). Here, the prejudice that Plaintiffs – and the public at large – will suffer absent a
preliminary injunction is all too clear. Defendant Herrera’s entire operation is illegal, and in
violation of numerous civil and criminal statutes, including GBL 349-350, Civil Rights Law 50-
51, the penal laws discussed above, and the common law. There is simply no reason to allow
Defendant Herrera to continue exploiting Plaintiffs, and now their counsel, nor is there any
reason to permit his flagrant violations of Section 349 and 350 of the GBL, and Civil Rights Law
50-51, to persist. Allowing his business to continue in any capacity creates an imminent risk of
harm to Plaintiffs, and consumers in general.
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As has been demonstrated above, Defendant Herrera’s entire organization is a sham.
Accordingly, the prejudice that he will suffer as a result of an injunction is minimal. Because his
entire operation is per se illegal, the only harm that will directly accrue to Defendant Herrera as a
result of an injunction is that he will be restrained from doing what is already forbidden: running
an illegal company whose entire business model relies on defaming, harassing, misappropriating,
threatening, and using, Plaintiffs’ and now their counsels’ name, image, likeness, photographs,
private information, interfering with their business associates, and fans, for his own perverse
financial gain.
Plaintiffs know all too well the personal and financial pain wrought by Defendant Herrera,
and his co-conspirators, and they now seek an injunction in the hopes of preventing any future
injuries, to themselves, or others, and so they can fairly litigate this case, and continue their
business, and life, without fear of reprisals or retaliation from Defendant Herrera.
As such, the balance of equities requires preliminary relief while the Court reaches its
ultimate determination on the merits.
6. Plaintiffs Are Likely to Succeed on the Merits.
In discussing their probability of success in the context of their application for preliminary
injunction enjoining Defendants’ fraudulent conduct, the Plaintiffs have also established their
likelihood of success on the merits with respect to GBL §§ 349 and 350. Plaintiffs are likely to
succeed on all other claims asserted in the Complaint.
III. PLAINTIFFS MAY ALSO SEEK INJUNCTIVE RELIEF FOR HERRERA’S

VIOLATIONS OF CIVIL LAW §§ 50-51.
Section 50 of the New York Civil Rights Law provides:
“A person, firm or corporation that uses for advertising purposes, or for the purposes of trade,
the name, portrait or picture of any living person without having first obtained the written
consent of such person ... is guilty of a misdemeanor.”
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Having defined the offense, and declaring it to be criminal, § 51 of the Civil Rights Law goes
on to provide civil remedies for violation as well, including injunction and damages. Once the
violation is established, the plaintiff may have an absolute right to an injunction, regardless of
the relative damage to the parties. Onassis v. Christian Dior-New York, Inc., 472 N.Y.S.2d 254,
258 (NY.Sup.Ct. 1984). See Blumenthal v. Picture Classics, Inc., 257 N.Y.S. 800 (1st Dept.
1932), Loftus v. Greenwich Lithographing Co., 182 N.Y.S. 428 (1st Dept. 1920); Durgom v. CBS,
214 N.Y.S.2d 752 (1st Dept. 1961). In Onassis, the Court posed a simple question: “Is there a
violation? Onassis, 472 N.Y.S.2d at 258. In order to establish a violation under Civil Rights Law
§§ 50 and 51, a plaintiff must demonstrate that the defendant used the plaintiff's name, portrait,
picture or voice in the State of New York for purposes of advertising or trade, without the
plaintiff's written permission. See Leviston v. Jackson, 980 N.Y.S.2d 716, 719 (1st Dept. 2013).
“Civil Rights Law § 51 authorizes a civil action for injunctive relief and damages, including
exemplary damages if a defendant acts knowingly in violation of that protection.” Leviston, 980
N.Y.S.2d at 719-720; Ryan v. Volpone Stamp Co., Inc., 107 F.Supp.2d 369, 391 (SDNY 2000).
“The principle to be distilled from a study of the statute and of the cases construing it is that
all persons, of whatever station in life, from the relatively unknown to the world famous, are to
be secured against rapacious commercial exploitation….[I]t is intended to protect the essence of
the person, his or her identity or persona from being unwillingly or unknowingly
misappropriated for the profit of another.” Onassis, 472 N.Y.S.2d at 260.
Accordingly, Plaintiffs, may seek redress under Civil Rights Law §§50-51 for Defendant
Herrera’s “rapacious commercial exploitation” of their name, image, photograph, and likeness.
The instant misappropriation by Dax Herrera is appalling, and done during this litigation, to
harass, threaten, intimidate, injure and exploit Plaintiffs’ and their counsel; and to create content
for his podcast, and other social media, to retaliate against Plaintiffs and their counsel, for filing
the instant lawsuit against him. Such commercial exploitation, and vindictiveness, by one party
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to a litigation, against another party to a litigation – and their attorneys – is reprehensible under
our civil legal system, and cannot be tolerated by this Court.
As demonstrated above, there is no dispute that Defendant Herrera commercially exploited
the Plaintiffs’ and their counsels’ name, image, photograph, and likeness, to attract fans, and sell
goods, such as: albums, merchandise, concert tickets, and access to listen to, and download, a
podcast, as well as other content, which patrons pay monthly fees for. Further, any argument that
Plaintiff Ouzounian, may be a limited public figure, is of no consequence. In Onassis, the public
figure at issue was the former first lady, and one of the most famous and recognizable people in
the world, and the court was clear, that: “as a public figure she has not forfeited her right of
privacy and does not become a subject for commercial exploitation.” Onassis, 472 N.Y.S.2d
at 263. See Woody Allen v. National Video, Inc., 610 F.Supp. 612 (SDNY 1985). Further, the
content at issue created and exploited by Herrera, is meant solely to harass, injure and intimidate
Plaintiffs, and their counsel. Such reprehensible conduct, and potentially criminal actions alleged
herein, are in no way newsworthy, or entitled to any protection, under New York’s Civil Rights
Law §§50-51. Instead, the conduct of Herrera is precisely the type of conduct that New York’s
Civil Rights Law §§50-51 proscribes, and absolutely enjoins. See Leviston, 980 N.Y.S.2d at 719-
720 (Famous rap musician 50 Cent posting of sexually explicit videotape, involving former
girlfriend of his competitor in ongoing “rap war.”) See Myers v. U.S. Camera Pub. Corp., 9
Misc.2d 765, 768 (1957) (publishers published book with nude photographs of professional
model, without her consent). See Ryan, 107 F.Supp.2d at 392 (barring seller of memorabilia
featuring famous baseball player’s name). See Onassis, 472 N.Y.S.2d at 263 (Use in magazine
advertisement bore striking resemblance to well-known personality, was an impermissible
misappropriation of the well-known personality's identity.) See Durgom, 214 N.Y.S.2d at 753
24
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! (the plaintiff was entitled to an injunction restraining broadcasting of particular television
program
118. so long
Plaintiffs have as it should
suffered containashis
damages name of
a result or the
characterization
conspiracy towhere hisand
defraud, written
the consent had
notinterference,
tortious been given; engaged
regardless
in of
bydefendants' damage.) See Barrows v. Rozansky, 111 A.D.2d 105,
the Defendants.
108 (1st Dept. 1985) (nude photographs of the plaintiff in connection with stories of her arrest for
WHEREFORE,
promoting prostitution
A. Plaintiffs’ statedrequest
respectfully a cognizable
that thisclaim
Courtfor invasion
enter of privacy.)
a judgment againstSee LoRiggio v. Sabba,
69 A.D.3d
Defendants’ 446,
for all 448 (1sttoDept.
damages which2010) (principal
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interest, tax return
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and business
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such other Civil
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as this Law.)
Court deems just and proper; and
B.V. CONCLUSION/RELIEF
Plaintiffs’ respectfully request thatREQUESTED
this Court enjoin the full amount of the film
tax credit For the reasons

totaling set forthtoabove,
$1,950,000.00 and
be held in based
escrowonpending
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Defendants, and toinaward
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other legal andfor a temporary
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to (TRO) pending
make the
themhearing
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court costs andfor a preliminary
attorney injunction,
fees incurred herein.Plaintiffs respectfully request that
the Court grant its application in all respects,

JURY and award them attorney fees and costs incurred
DEMAND
since the inception

Plaintiffs’ demandoftrial
thisby
litigation.
jury on all issues so triable.
Dated: New York, New York

February 16, 2018
Respectfully
Respectfullysubmitted,
submitted,
THE
THELANDAU
LANDAUGROUP,
GROUP,PC
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Generated by CamScanner
By: ____________________________
By: Kevin
____________________________
A. Landau, Esq.
45Kevin A. Landau
Rockefeller (P65601)
Plaza, Suite 2000
Attorneys for the Plaintiffs
New York, New York 10111
38500
(212) Woodward Ave., Ste. 310
537-4025
Bloomfield Hills, Michigan 48304
248.686.5916
Attorneys for Plaintiffs’ George Ouzounian and Jessica Blum
Dated: July 14, 2014
25
! #$! 31 of 31

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FILED: NEW YORK COUNTY CLERK 02/16/2018 11:27 AM INDEX NO.

SUPREME COURT OF THE STATE OF NEW YORK

DAX HERRERA P/K/A DICK MASTERSON,

PLAINTIFFS’ MEMORANDUM OF LAW IS SUPPORT OF MOTION FOR A

The Landau Group, PC

Attorneys for Plaintiffs’ George Ouzounian and Jessica Blum

TABLE OF AUTHORITIES CITED i

II. STATEMENT OF APPLICABLE FACTS. 2

a. Actions Taken By Herrera Against Plaintiffs’ Subsequent To

b. DEFAMATION AND THREATS AGAINST KEVIN A. LANDAU, ESQ.,

III. A TEMPORARY RESTRAINING ORDER (OR PROTECTIVE ORDER)

(i) This is Not a Prior Restraint. 10

IV. PLAINTIFFS MEET THE REQUIREMENTS FOR THE ISSUANCE OF

1. Defendants’ Deceptive Acts and False Advertising Were

2. Defendant Herrera’s Deceptive Acts Were Materially Misleading. 17

3. Plaintiffs Each Suffered an Injury as a Result of Defendant

4. Plaintiffs May Satisfy the Irreparable Injury Requirement by Demonstrating Irreparable

5. The Balances of Equities Tips in Favor of Plaintiffs. 21

6. Plaintiffs Are Likely to Succeed on the Merits. 22

V. PLAINTIFFS MAY ALSO SEEK INJUNCTIVE RELIEF FOR

VI. CONCLUSION/RELIEF REQUESTED 25

TABLE OF AUTHORITIES CITED

Barrows v. Rozansky, 111 A.D.2d 105, 108 (1st Dept. 1985) 25

Cantrell v. Forest City Pub. Co., 419 US 245, 253 (1974) 13

City of New York v. Smokes-Spirits.Com, Inc., 12 N.Y.3d 616, 623 (2009) 16

Cox v. State of Louisiana, 379 U.S. 559, 583 (1965) 10

Craig v. Harney, 331 U.S. 367, 394 (1947) 10

Doe v. Axelrod, 73 N.Y.2d 748, 750 (1988) 14

Exxonmobil Inter-Am. v. Advanced Info. Eng’g Servs. Inc.,

Four Times Square Assoc., L.L.C. v. Cigna Investments, Inc.,

In re Application of Dow Jones & Company, Inc., et. al.,

Jiggets v. Perales, 202 A.D.2d 341, 342 (1st Dep’t 1994) 15

LoRiggio v. Sabba, 69 A.D.3d 446, 448 (1st Dept. 2010) 26

Ma v. Lien, 198 A.D.2d 186, 187 (1st Dep’t 1993) 21

Myers v. U.S. Camera Pub. Corp., 9 Misc.2d 765, 768 (1957) 24

Oswego v. Marine Midland Bank, 85 N.Y.2d 20, 27 (1995) 16

Pennekamp v. State of Florida, 328 U.S. 331, 347 (1946) 10

People v. Buttafucoco, 599 N.Y.S.2d 419, 423 (NassauCty.Ct. 1993) 14

People v. Munn, 688 N.Y.S.2d 384, 386 (Queens.Cty.Crim.Ct.1999) 14

People v. National Home Protection, Inc.,

People v. Romero, 91 N.Y.2d 750, 756 (1998) 19

People v. Shack, 86 N.Y.2d 529, 536 (1995) 14

People v. Telehublink, 301 A.D.2d 1006, 1009-10 (3d Dep’t 2003) 18

Sheppard v. Maxwell, 384 US 333, 351 (1966) 10

Smith v. Smith, 24 A.D.3d 822, 823 (3rd Dept. 2005) 14

Spagnola v. Chubb Corp., 574 F.3d 64, 74 (2d Cir. 2009) 18

State v. Van Duyne, 43 NJ 369 (1964) 10

Stutman v. Chemical Bank, 95 N.Y.2d 24, 29 (2000) 15

Vacco v. Lipsitz, 663 N.Y.S.2d 468, 476 (1st Dept. 1997) 17

Wood v Georgia, 370 U.S. 375, 396 (1970) 12

STATUTES AND COURT RULES

Civil Rights Law §§ 50-51 1, 17, 21-23

GBL §§ 349-350 1, 14-15, 19, 21

Penal Law §120.45(3) 14

Penal Law 135.60(5) 13

Penal Law § 240.30 14

Defendant Dax Herrera.

invasion of privacy, constant harassment, posting of private information, intimidation,

II. STATEMENT OF APPLICABLE FACTS.

a. Actions Taken By Herrera Against Plaintiffs’ Subsequent To The Instant Lawsuit

Ouzounian. (Landau Aff., at ¶ 14.)

name. (See Exhibit Six.) (Landau Aff., at ¶ 15.)

people. (See Exhibit Eight.) (Landau Aff., at ¶ 17.)