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UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA


Alexandria Division

Richard Snyder, and )


)
Catherine Snyder )
603 Nash Street )
Herndon, Virginia 20170 )
) Case No. 1:08cv01270 (GBL-TCB)
Plaintiffs )
) Jury Trial Requested
v. )
)
Greenberg Traurig, LLP )
r/a Corporation Services Co. )
11 S. 12th Street )
Richmond, Virginia 23218 )
)
Harley Lewin )
Greenberg Traurig, LLP )
200 Park Avenue )
New York NY 10166 )
)
Stephen J. Wadyka )
Greenberg Traurig, LLP )
2101 L Street, N.W. )
Suite 1000 )
Washington, DC 20037 )
)
Janet Hajek )
Greenberg Traurig, LLP )
2101 L Street, N.W. )
Suite 1000 )
Washington, DC 20037 )
)
Diane Von Furstenberg Studio, L.P. )
r/a The Prentice-Hall Corp. System, Inc. )
2711 Centerville Road, Suite 400 )
Wilmington, Delaware 19808 )
)
Larissa MacFarquhar )
159 Prospect Place )
Brooklyn, New York 11238 )
)
Advance Publications, Inc., t/a The New Yorker )
r/a Managing Partner )
Sabin, Bermant & Gould, LLP )
Four Times Square )
New York, New York, 10036 )
)
Conde Nast, Inc. )
r/a The Corporation Trust Co. )
1209 Orange Street )
Wilmington, Delaware 19801 )
)
Defendants )

FIRST AMENDED COMPLAINT

On December 8, 2006, Defendants entered Plaintiffs’ home under color of a civil

trademark-related search and seizure order.1 During this search and seizure, Defendants

exceeded the scope of the warrant, violating the rights of Plaintiffs. Accordingly, Plaintiffs bring

claims pursuant to 42 U.S.C. § 1983 and 15 U.S.C. § 1116, and other claims under the common

law and the law of Virginia for constitutional violations, abuse of process, trespass, and

conversion and trespass to chattels. Additionally, Plaintiffs bring claims under 15 U.S.C. §§

1119 and 1120 for cancellation of a fraudulent trademark and damages therefrom. In support of

these claims, and upon information and belief, Plaintiffs allege as follows:

JURISDICTION AND VENUE

1. This court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. §1331

as this matter involves a federal question arising under Title 15 of the United States Code and

under 42 U.S.C. §1983. Pendent jurisdiction exists over state claims because they are derive

from the same facts and are related to the subject matter of the federal claims.

2. Venue is proper in this action pursuant to 28 U.S.C. § 1391 in that the Defendants are

present in or transacting business within this district, a substantial part of the events giving rise to

1
The Order, signed December 7, 2006 by Judge Cacheris of this Court, regarding the search and seizure of Plaintiff
Catherine Snyder’s home, will be referred to herein as “the order,” “order,” “the warrant,” or “warrant.”

2
the claims occurred in this district, and the Defendants directly or indirectly performed acts

within this judicial district in furtherance of the allegations herein and under authority of this

Court.

PARTIES

3. Plaintiff Richard Snyder is the husband of Plaintiff Catherine Snyder, residing now and

at the time of the events alleged herein at 603 Nash Street, Herndon, Virginia, 20170 in Fairfax

County, Virginia.

4. Plaintiff Catherine Snyder is the wife of Plaintiff Richard Snyder, both residing now

and at the time of the events alleged herein at 603 Nash Street, Herndon, Virginia, 20170 in

Fairfax County, Virginia.

5. Defendant Harley Lewin is an attorney at law and a shareholder at the law firm

Greenberg Traurig, LLP. Upon information and belief, Mr. Lewin works and resides in or

around New York, New York. Mr. Lewin came to Virginia for the events which are the subject

of this matter, and was admitted pro hac vice to the United States District Court for the Eastern

District of Virginia in the prior matter before this Court involving Plaintiffs.2

6. Defendant Stephen J. Wadyka is an attorney at law and a shareholder at the law firm

Greenberg Traurig, LLP. Upon information and belief, Mr. Wadyka works in Washington, DC

and resides at 3401 Greenway, Unit 301, Baltimore, Maryland 21218. Mr. Wadyka came to

Virginia for the events which are the subject of this matter, and was admitted pro hac vice to the

United States District Court for the Eastern District of Virginia in the prior matter before this

Court involving Plaintiffs.3

2
Diane von Furstenberg Studio v. Snyder, et al., File No. 1:06cv1356 (JCC)
3
Id.

3
7. Defendant Janet Hajek is an attorney at law and an associate at the law firm Greenberg

Traurig, LLP. Upon information and belief, Ms. Hajek works and resides in or around

Washington, DC. Ms. Hajek came to Virginia for the events which are the subject of this matter,

and is a member of the Virginia state bar and the bar of the United States District Court for the

Eastern District of Virginia.

8. Greenberg Traurig, LLP is a law firm with offices across the United States, including in

New York, New York, Washington, DC, and Tysons Corner, Virginia.

9. Upon information and belief, Diane von Furstenberg Studio, L.P., is a Delaware limited

partnership with its principal place of business in New York which hired Greenberg Traurig,

LLP to handle certain trademark matters, including the previous matter in which Plaintiffs were

involved or affected.

10. Upon information and belief, Larissa MacFarquhar is a journalist who was employed

by the New Yorker at the time of the events in this complaint. Mrs. MacFarquhar authored an

article about Mr. Lewin’s trademark practice, and accompanied Defendants Lewin, Wadyka, and

Hajek during the warrant execution at Plaintiffs’ home.

11. Upon information and belief, The New Yorker is the name of a periodical publication,

owned by or a trade name for Advanced Publications, Inc., owned by or a trade name for Conde

Nast Inc., or for a separate business entity or entities. The New Yorker assigned Ms.

MacFarquhar to cover Mr. Lewin and the Greenberg Traurig, LLP home invasion, and published

the article Ms. MacFarquhar wrote about entering the Snyders’ home. Advanced Publications,

Inc. is a New York Corporation with its principal place of business at 950 Fingerboard Road,

Staten Island, New York, 10305.

4
12. Upon information and belief, Conde Nast, Inc. is a Delaware corporation with its

principal place of business at 420 Lexington Avenue, New York, New York, 10170 and is the

publisher of the periodical The New Yorker.

PRELIMINARY STATEMENT

13. This is an action under U.S.C. § 1983, with related claims under Bivens v. Six Named

Unknown Agents of the Fed. Bur. of Narcotics, 403 U.S. 388 (1971), Title 15 of the United

States Code, and under Virginia law. Defendants entered Plaintiffs’ home with a civil search and

seizure warrant issued by this Court under the Lanham Act. During the execution of the warrant,

Defendants went well beyond what was authorized by the warrant and violated Plaintiffs’

constitutionally protected rights, particularly by seizing goods not described in the warrant and

by causing a reporter, in her journalistic capacity, to be present during the execution of the

warrant and using the execution of the warrant as an ‘advertising opportunity’ for the lawyers

and law firm involved. Further, the trademark under which the warrant was obtained had been

fraudulently obtained by its holder, and was accordingly void ab initio.

FACTUAL ALLEGATIONS

14. Plaintiffs Richard Snyder and Catherine Snyder have both resided in Fairfax County,

Virginia for more than thirty years and had a stable marriage. They are upstanding members of

their community, and before the prior litigation, they were financially stable, and both had

excellent credit ratings. Mr. Snyder has been working as a software engineer for the last twenty

years, and Mrs. Snyder has been raising their two sons while working in and out of the home.

15. Mrs. Snyder started a legitimate licensed and bonded eBay business in February 2003

so that she could be home with her sons while generating revenue.

5
16. Diane Von Furstenberg Studio (“Von Furstenberg”), a women’s fashion designer and

producer of apparel, hired the Greenberg Traurig, LLP law firm and attorneys Harley Lewin,

Stephen Wadyka, and Janet Hayek (collectively, “Law Defendants”) to address certain

trademark matters for Von Furstenberg.

Ex Parte Proceedings Against the Snyders in the Prior Action

17. Near the end of 2006, Law Defendants filed an action on Von Furstenberg’s behalf,

under seal, in this Court against Plaintiff Catherine Snyder, alleging violations of the Lanham act

for selling over the internet allegedly counterfeit goods bearing the Von Furstenberg mark,

requesting a search and seizure order and temporary restraining order at an ex parte hearing, and

representing to this Court that they had thoroughly investigated Catherine Snyder.

18. Richard Snyder was not named in the suit, nor was he mentioned in any way on the

search and seizure order.

19. Law Defendants and Von Furstenberg stated in its request for the search and seizure

order that they had “thoroughly investigated” Catherine Snyder and others. On information and

belief, part of this investigation involved having investigators track down zip codes to see who

had “assets worth going after.”

20. Although Law Defendants and Von Furstenberg represented that they had thoroughly

investigated Catherine Snyder, they made a number of false statements to this Court in their

request for seizure order and TRO.

21. Examples of these false statements which Law Defendants and Von Furstenberg could

readily have verified include allegations that Catherine Snyder operated in a common operation

with individuals alleged to be named Lily Shao and John Auyeung and that Catherine Snyder

operated from various locations in Virginia.

6
22. Upon information and belief, Diane von Furstenberg's “thorough[]” investigation of

Catherine Snyder failed to find any specific facts demonstrating that Mrs. Snyder would likely

defy a Court order and destroy evidence and/or move assets if Law Defendants and Diane von

Furstenberg Studio were to proceed in the matter with notice to Mrs. Snyder.

23. Law Defendants and Von Furstenberg represented in their application to this Court that

they would file a protective order regarding their access to the materials to be recovered in the

search and seizure. On information and belief, this protective order was never submitted to this

Court for entry.

24. As provided by law, this Court ordered Law Defendants and Von Furstenberg to post a

cash or corporate security bond in the amount of $20,000 for the execution of the seizure order.

Upon information and belief, Law Defendants and Von Furstenberg did not post this bond during

time between issuance of the warrant and the date of the bond return, at which time this Court

excused Law Defendants from refiling the bond.

25. This Court, upon an ex parte hearing, granted a temporary restraining order against

Plaintiff Catherine Snyder and authorized the U.S. Marshals or other law enforcement officers,

with the assistance of attorneys or agents of Von Furstenberg, to search the residence of

Plaintiffs and seize certain enumerated items.

26. The items described in the seizure order were limited to the following:

a. any and all unauthorized and unlicensed merchandise bearing the Von Furstenberg

marks, as well as the means for making the same;

b. the books and records relating thereto, including but not limited to records and data

contained in electronic format on computers, servers, hard drives, zip drives and

disks;

7
c. the containers or vehicles in which the same are held or transported, which

Defendants sell, attempt to sell or hold for sale: and

d. any counterfeit Von Furstenberg product, reproduction, copies or colorable

imitations thereof, including dresses or other items.4

Entry Made to the Snyders’ Home

27. Upon information and belief, on or about the morning of December 8, 2006, Law

Defendants approached the Herndon Police Department for the purpose of obtaining assistance

and an official presence at the entry to the Snyders’ home.

28. Upon information and belief, Wadyka, upon introducing himself to officers of the

Herndon Police Department and for the purpose of inducing those officers to accompany Law

Defendants to Plaintiffs’ house during the execution of the warrant, flashed a badge and

indicated that he was a U.S. law enforcement official.

29. On the morning of December 8, 2006, Law Defendants, accompanied by two members

of the Herndon Police Department and two other individuals who Law Defendants did not

identify at any time to the Snyders during the search, entered Plaintiffs’ home and indicated that

they were present under authorization of a warrant and that compliance with Law Defendants’

directions and requests was required by law. Under the reasonable belief that Law Defendants’

actions had the force of law, the Snyders complied with Law Defendants’ directions and requests

throughout the time Law Defendants were present in the Snyders’ home. The two unidentified

individuals were a forensic technician and the reporter Larissa MacFarquhar. Law Defendants

took charge of the operation, and the police officers, though present, did not actively search or

seize items.

4
Id., Order, docket no. 17 (Dec. 7, 2006).

8
30. At the time that Law Defendants and MacFarquhar arrived, Mr. Snyder met this group

at the door. Law Defendants entered the house first before the police officers, engaged in all

substantive discussion with and direction to Plaintiffs, and otherwise entirely directed the search

and seizure, intentionally giving the impression that they were in charge of the search under

color of this Court’s order and state law.

31. Mrs. Snyder was still in bed, and Mr. Snyder requested permission of Lewin to awaken

her and let her dress. Although Lewin permitted Mr. Snyder to awaken Mrs. Snyder, Lewin

insisted, under color of law, that Mr. Snyder keep the bedroom door open so that Lewin could

observe.

32. Upon information and belief, at the time of the home invasion described herein, Lewin

was the subject of research for a future article for the New Yorker. Lewin and the other

attorneys brought with them MacFarquhar, a journalist, to participate in the warrant execution,

and brought MacFarquhar into Plaintiffs’ home without the authorization of the warrant, the

permission of any resident of the Snyders’ household, and without informing the Snyders that

MacFarquhar was not in any way related to the search. MacFarquhar was present for no purpose

other than as a journalist, and did not in any way assist with execution of the warrant.

33. At all times, the search of Plaintiffs’ home was controlled, orchestrated and directed by

defendant Lewin, whose actions, statements, and shouting evidenced a deliberate attempt to

provide a dramatic story for MacFarquhar, who observed the search from within the Snyders’

home.

34. During the course of the warrant execution, Mrs. Snyder approached the front door with

the obvious intent to go outside, which neither the warrant nor the police prohibited. Defendant

9
MacFarquhar, who was sitting in front of and blocking the front door, did not move out of the

way, and said to Mrs. Snyder in a menacing manner, “I wouldn’t go outside if I were you.”

Defendants’ Actions Beyond the Authorization of Law or this Court

35. In addition to items authorized by the warrant, Law Defendants, acting on behalf of

Von Furstenberg and under color of law, removed a large number of other items which they were

not authorized to remove and which were self-evidently not within the scope of the warrant.

36. The additional items removed included personal clothing, clothing bearing other brand

names besides Von Furstenberg, and other records including

a. the Snyders’ marriage certificate,

b. the Snyders’ and their sons’ birth certificates,

c. correspondence between Mrs. Snyder and an attorney who had represented her in

an unrelated matter,

d. their sons’ social security cards,

e. mortgage settlement documents,

f. homeowner and automobile insurance policies,

g. Mrs. Snyder’s life insurance policy,

h. medical records relating to Mrs. Snyder and one of their sons,

i. all of Mrs. Snyder’s credit cards and several of Mr. Snyder’s credit cards,

j. tax returns,

k. unopened mail addressed to Mr. Snyder including personal correspondence, tax

documents, correspondence from the boys’ schools, and a time-sensitive vehicle

registration renewal form,

l. a report card from one of their sons,

10
m. lists of usernames and passwords for websites including one son’s login for the

Fairfax County Public Schools’ eLearning site,

n. access information for the Snyders’ online banking access,

o. access codes for the Snyders’ voicemail box,

p. pay stubs for Mr. Snyder,

q. stacks of blank personal checks,

r. and social security benefits statements.

37. None of the items listed in paragraph 36 fell within the scope of the seizure order.

38. Law Defendants caused the unopened mail addressed to Mr. Snyder to be opened while

in Law Defendants’ possession subsequent to the seizure.

39. Law Defendants removed Mrs. Snyder’s purse from her office closet and removed

personal credit cards issued to both Catherine Snyder and Richard Snyder from her wallet. Law

Defendants also required the Snyders to give them login access to a computer belonging to Mr.

Snyder’s employer and to a computer which Law Defendants identified as the Snyders’ son’s

computer.

40. While still in the Snyders’ home under color of the search and seizure order, Lewin or

another Law Defendant held out to Mrs. Snyder that she was required to write down for them

login information for additional websites such as eBay and Paypal, and then retained that

information when she did so.

41. Law Defendants left a stack of papers which were required to be served, regarding the

case, in the Snyders’ kitchen. Law Defendants failed to include in this stack the Memorandum

of Law in support of its application for the ex parte seizure order and TRO.

11
42. Before leaving the Snyders’ home, Lewin or another Law Defendant, knowing that the

Snyders were not represented by counsel and knowing that Mr. Snyder was not a party to the

action, informed Mr. Snyder that there was a hearing before this Court on December 22, 2006 in

that matter, but that the Snyders need not attend, and encouraged Mr. Snyder to contact Law

Defendants quickly to resolve the matter.

43. Law Defendants were present in the Snyders’ home approximately three hours,

although the Herndon Police officers left after about one hour.

44. On information and belief, Law Defendants took direct control of the seized goods

rather than allow this Court or the U.S. Marshals to maintain them, and made and retained copies

of all papers, regardless of whether they fell within the scope of the order.

45. Upon information and belief, in September 2006, Diane Von Furstenberg, on behalf of

defendant Von Furstenberg, stated in a Wall Street Journal interview it is her belief that “Laws

are created to intimidate people [with the threat of litigation].”

46. Shortly before leaving the Snyder's home on December 8, 2006, Law Defendant Lewin

confronted Mrs. Snyder in her kitchen, telling her: “You're going to have to pay my client some

money.” When Mrs. Snyder tearfully replied that she did not have any money, Lewin

responded “You've been making a good a living off of my client and now its gonna cost ya

lady.”

47. About five months after the home invasion, MacFarquhar and the New Yorker

published a cover article, entitled “Bag Man,” describing details of the search and seizure and

profiling Lewin’s practice. On information and belief, Lewin and Greenberg Traurig used the

publicity of the article authored by MacFarquhar and published by the New Yorker for personal

and business marketing.

12
48. The Court’s Order permitted the freezing of accounts held by Catherine Snyder. Law

Defendants, on behalf of Von Furstenberg and under color of federal and state law, went beyond

freezing the accounts of Mrs. Snyder, and directed the freezing of accounts held by Richard

Snyder and/or directed the freezing of the entire contents of accounts held jointly by Catherine

Snyder and Richard Snyder, causing checks written by the Snyders on these improperly frozen

funds to bounce, causing Mr. Snyder to be unable to pay bills including a mortgage payment as

they came due, and causing damage to Mr. and Mrs. Snyder’s credit.

Resolution of the Prior Matter

49. The prior matter ended by partial summary judgment and a bench trial on the issue of

damages. Judgment was entered against Catherine Snyder in the amount of $100,000.

Von Furstenberg’s Fraud on the U.S. Patent and Trademark Office

50. The trademark used by Von Furstenberg as the basis for its alleged trademark

infringement claim and in it's application for an ex parte seizure Order and TRO is Trademark

Reg. No. 2276188 (“The ‘188 Mark”) for the mark “Diane Von Furstenberg”.

51. Von Furstenberg first registered Trademark Reg. No. 2276188 on September 7, 1999.

52. In its application for the ‘188 Mark, Von Furstenberg stated that the mark was currently

in use for “Wearing apparel, namely, ladies dresses', dress suits and pant suits, t-shirts, skirts,

pants, sweaters, vests, tunics, kimonos, sashes, blouses, jackets, coats; loungewear and

sleepwear, namely robes, pajamas, nightgowns and nightshirts; lingerie and underwear, namely

boxer shorts, and slips; women's apparel accessories, namely, hosiery, belts, shoes, hats and

scarves.” Von Furstenberg claimed a date of first use in commerce of August 1997.

53. Upon information and belief, of the items "loungewear and sleepwear, namely robes,

pajamas, nightgowns and nightshirts; lingerie and underwear, namely boxer shorts, and slips;

13
women's apparel accessories, namely, hosiery, belts, shoes, hats and scarves” as specified above,

none were offered for sale at the time of registration. Of these, only belts, shoes, and scarves are

now being manufactured and sold.

54. Von Furstenberg knew or should have known through minimal diligence that the mark

was not in use and had not been in continuous use in commerce for five consecutive years on all

of the goods listed in the application.

55. Despite this knowledge, Von Furstenberg signed and submitted the registration to the

USPTO.

56. On August 18, 2005 Von Furstenberg filed a combined Section 8 and Section 15

affidavit for renewal and incontestability, and in that affidavit stated that the registrant "is using

the mark in commerce on or in connection with all the goods" listed in the existing registration.

57. In the August 18, 2005 Section 8 and Section 15 affidavit, Von Furstenberg further

stated that "The mark has been in continuous use in commerce for five consecutive years after

the date of registration, or the date of publication under Section 12(c), and is still in use in

commerce on or in connection with all goods as identified above."

58. Upon information and belief, the mark was not being used on all the goods listed in the

existing registration nor in continuous use in commerce for five consecutive years after the date

of registration, or the date of publication under Section 12(c), and was not in use in commerce on

or in connection with all goods as identified in the existing registration, as sworn to in the section

8 and 15 declarations for renewal and incontestability of the mark.

59. Von Furstenberg knew or should have known through minimal diligence that the mark

was not in use and had not been in continuous use in commerce for five consecutive years on all

of the goods listed in the existing application.

14
60. Despite this knowledge, Von Furstenberg submitted the verified section 8 and 15

affidavits to the USPTO.

61. On the basis of the section 8 and 15 affidavits, Von Furstenberg was permitted to renew

its registration, and was granted incontestability by the USPTO.

COUNT I – Cancellation of Trademark pursuant to


15 U.S.C. § 1119 and damages for fraudulent registration

62. Paragraphs 1-61 are incorporated as though included herein.

63. Von Furstenberg filed registration number 2276188 on September 7, 1999 for the Diane

Von Furstenberg mark.

64. Von Furstenberg, in its application for The ‘188 Mark alleged that it was currently

using the Von Furstenberg trademark on “Wearing apparel, namely, ladies dresses', dress suits

and pant suits, t-shirts, skirts, pants, sweaters, vests, tunics, kimonos, sashes, blouses, jackets,

coats; loungewear and sleepwear, namely robes, pajamas, nightgowns and nightshirts; lingerie

and underwear, namely boxer shorts, and slips; women's apparel accessories, namely, hosiery,

belts, shoes, hats and scarves.”

65. On information and belief, Von Furstenberg was not using the mark at that time on any

loungewear and sleepwear, including robes, pajamas, nightgowns and nightshirts; any lingerie or

underwear, including boxer shorts, and slips; or on the women's apparel accessories hosiery,

belts, shoes, hats and scarves.

66. These knowingly incorrect allegations of current use constitute fraud on the Trademark

office as material misstatements made with the intent of inducing the Trademark office to rely on

them and to register the trademark in a manner which was not justified by the facts of the matter.

67. The Trademark office did in fact register Von Furstenberg’s trademark pursuant to the

misrepresentations made by Von Furstenberg.

15
68. Von Furstenberg, in its Section 8 and Section 15 combined affidavit for renewal and

incontestability, alleged that the mark had been in use for five years and was in current use on

the items for which the mark was registered.

69. On information and belief, Von Furstenberg had not in the five years after registration

used the mark on and was not at that time using the mark on any loungewear and sleepwear,

including robes, pajamas, nightgowns and nightshirts; any lingerie or underwear, including boxer

shorts, and slips; or on the women's apparel accessories hosiery, belts, shoes, hats and scarves.

70. Von Furstenberg knowingly attempted to mislead the USPTO so as to fraudulently

achieve a registration, renewal, and finding of incontestability.

71. Fraud on the Trademark office is justification for cancellation, ab initio, of the mark

and the award of civil damages to those injured by use of the mark.

72. Catherine Snyder lost and continues to lose income because her business, including

business unrelated to Von Furstenberg goods, was shut down by Diane Von Furstenberg by

securing an injunction, by intimidation, and by freezing or causing the termination of the means

by which she did business, pursuant to an enforcement action brought under this fraudulently

obtained trademark.

73. Richard and Catherine Snyder were damaged by the conduct of Von Furstenberg and

Law Defendants on behalf of Von Furstenberg in their actions in the prior matter regarding the

execution of the warrant. The warrant issued in this matter was only available to Von

Furstenberg because The ‘188 Mark had been registered.

74. The prior matter resulted in a judgment against Catherine Snyder which was only

available to Von Furstenberg because The ‘188 Mark had been registered.

75. The Snyders’ damages are compensable pursuant to 15 U.S.C. § 1120.

16
COUNT II – Deprivation of Property in violation of 42 U.S.C. § 1983 and under Bivens v.
Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 U.S. 388 (1971)

76. Paragraphs 1-75 are incorporated as though included herein.

77. Law Defendants, while executing a search and seizure pursuant to a warrant issued by

this Court, went beyond the scope of the warrant and seized additional property which was not

authorized to be seized by the warrant nor otherwise justifiable.

78. Law Defendants were acting under color of federal and state law because they

professed to act in the name of the United States government, acted in concert with the Herndon

Police in executing the warrant, and in fact directed and performed the warrant execution,

searching and seizing items themselves. There is a sufficiently close nexus between

governmental action and the challenged action such that the action may fairly be treated as that

of the state itself.

79. While acting under color of state and federal law, Law Defendants deprived the

Snyders of a constitutional right by depriving the Snyders of property without due process of

law.

80. This deprivation of property was caused by the abuse of a right or rule of conduct

created by the United States government and effected by private parties acting together with or

having obtained significant aid from state and federal officials or engaging in conduct otherwise

chargeable to the Commonwealth or the United States. By invoking the aid of this Court in the

issuing of the warrant and by invoking the aid of the Herndon Police in the execution of the

warrant, Law Defendants were willful participants in joint activity with the Commonwealth and

with the United States or their agents and were authorized to perform governmental tasks as

government agents or actors.

17
81. This deprivation of property was done with malice, in bad faith, and with reckless and

callous indifference to the rights of the Snyders.

82. Defendants caused damages to the Snyders by this deprivation of property, including

but not limited to consequential damages from removal of important records and freezing of

bank accounts, humiliation and emotional distress, and the costs, including attorneys fees, of

bringing this action.

COUNT III – Deprivation of privacy and sanctity of home pursuant to 42 U.S.C. § 1983
and under Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 U.S. 388
(1971)

83. Paragraphs 1-82 are incorporated as though included herein.

84. Law Defendants and Von Furstenberg caused the journalist MacFarquhar, who was not

acting in any capacity to assist in the search or seizure, to enter the Snyders’ home while acting

to execute the warrant issued by this Court.

85. Although this Court’s order permitted attorneys or agents of Von Furstenberg to

accompany and assist law enforcement officers in the execution of the warrant, the order did not

permit, nor would the Fourth Amendment to the United States Constitution permit, a journalist to

observe the entry into a private home under a search and seizure warrant under the circumstances

of this case.

86. Law Defendants and Von Furstenberg were acting under color of state and federal law

because they professed to act in the name of the United States government, implied the same,

acted in concert with the Herndon police in executing the warrant issued by this Court, and in

fact directed the execution of the warrant themselves. There is a sufficiently close nexus

between governmental action and the challenged action such that the action may fairly be treated

as that of the state itself.

18
87. While acting under color of state and federal law, Law Defendants and Von

Furstenberg deprived the Snyders of their constitutional right by causing MacFarquhar to enter

their home during a search and seizure in violation of the 4th Amendment.

88. This deprivation was caused by the abuse of a right or rule of conduct created by the

United States government and effected by private parties acting together with or having obtained

significant aid from state and federal officials or engaging in conduct otherwise chargeable to the

Commonwealth or the United States. By invoking the aid of this Court in the issuing of the

warrant and by invoking the aid of the Herndon Police in the execution of the warrant, Law

Defendants were willful participants in joint activity with the State and with the United States or

their agents and were authorized to perform government tasks as government agents or actors.

89. This deprivation was done with malice, in bad faith, and with reckless and callous

indifference to the rights of the Snyders.

90. Defendants caused damages to the Snyders, including but not limited to humiliation and

emotional distress and the costs, including attorney’s fees, of bringing this action.

COUNT IV – Abuse of Trademark Act authority (§ 1116)

91. Paragraphs 1-90 are incorporated as though included herein.

92. Law Defendants, while executing a search and seizure pursuant to a warrant issued by

this Court, went well beyond the scope of the warrant and seized additional property which was

not authorized to be seized by the warrant nor otherwise justifiable.

93. These actions constitute a wrongful seizure under 15 U.S.C. § 1116, entitling the

Snyders to relief.

94. The wrongful seizure was made with malice, in bad faith, and with reckless and callous

indifference to the rights of the Snyders.

19
95. The Snyders were damaged by this wrongful seizure, including but not limited to

consequential damages from removal of important records and papers and freezing of bank

accounts, humiliation and emotional distress, and the costs, including attorneys fees, of bringing

this action.

COUNT V – Abuse of Process

96. Paragraphs 1-95 are incorporated as though included herein.

97. Law Defendants, while executing the extraordinary remedy of a civil search and seizure

order, went well beyond the scope of the order and seized additional property which was not

authorized to be seized by the warrant nor otherwise justifiable.

98. Law Defendants used legal process to gain access to the Snyders’ house and belongings

and to seize belongings which they would not otherwise have been able to seize.

99. Upon information and belief, Law Defendants had at least one ulterior purpose in using

this process, namely to show off for reporter MacFarquhar in the hopes of obtaining free

publicity for themselves and their law firm.

100. The seizing of property not authorized to be seized by the warrant constitutes an act in

the use of the process not proper in the regular prosecution of the proceedings.

101. The abuse of process was done with malice, in bad faith, and with reckless and callous

indifference to the rights of the Snyders.

102. The Snyders were damaged by this abuse of process, including but not limited to

consequential damages from removal of important records and papers and freezing of bank

accounts and humiliation and emotional distress.

COUNT VI – Conversion and/or Trespass to Chattels

103. Paragraphs 1-102 are incorporated as though included herein.

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104. The Snyders owned property consisting of the items listed in paragraph 36 of this

Complaint.

105. Law Defendants removed this property from the Snyders’ control and possession.

106. This property was not authorized to be seized under the warrant, and accordingly,

defendants wrongfully took control of this property and deprived the Snyders of control or

possession of this property.

107. Richard Snyder was joint owner of two bank accounts and sole owner of a third bank

account in which he maintained liquid property for payment of bills and ordinary expenses.

108. Law Defendants and Von Furstenberg attached the full amount contained in these

accounts.

109. This attachment of Richard Snyder's assets was not authorized by this Court’s asset

freeze and accordingly, defendants wrongfully took control of this property and deprived

Richard Snyder of control or possession of this property.

110. The conversion and/or trespass to chattels was done with malice, in bad faith, and with

reckless and callous indifference to the rights of the Snyders.

111. The Snyders were damaged by Defendants’ actions, including economic and emotional

damages to Richard Snyder and to Catherine Snyder caused by loss of liquidity.

COUNT VII - Trespass

112. Paragraphs 1-111 are incorporated as though included herein.

113. The Snyders lawfully hold the real property located at 603 Nash Street, Herndon,

Virginia.

114. MacFarquhar accompanied Law Defendants when they entered the Snyders’ home

under color of law, and knew or should have known that the Snyders reasonably believed that

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everyone present was acting under the apparent authority of the Commonwealth of Virginia and

of the United States.

115. Law Defendants knew of and had procured MacFarquhar’s presence at the Snyders’

house, and caused MacFarquhar to enter the Snyders’ house.

116. Although this Court’s order permitted attorneys or agents of Von Furstenberg to

accompany and assist law enforcement officers in the execution of the warrant, the order did not

permit, nor would the Fourth Amendment to the United States Constitution permit, a journalist to

enter into a private home under a search and seizure warrant.

117. MacFarquhar entered the Snyders’ home without any right, lawful authority, or express

or implied invitation.

118. Law Defendants caused MacFarquhar to enter the Snyders’ home without any right,

lawful authority, or express or implied invitation.

119. MacFarquhar’s and Law Defendants’ trespass on the Snyders’ property was done with

malice, in bad faith, and with intentional disregard for and with reckless and callous indifference

to the property rights of the Snyders and the sanctity of their home.

120. MacFarquhar entered the Snyders’ home while acting within the scope of her

employment with The New Yorker and/or Conde Nash, Inc.

121. The New Yorker and Conde Nash, Inc. are liable for damages in this case, as the

damages were caused by their employee Mrs. MacFarquhar’s trespass while she was acting

within the scope of her employment.

122. The Snyders were damaged by Defendants’ actions.

COUNT VIII – False Imprisonment

123. Paragraphs 1-122 are incorporated as though included herein.

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124. MacFarquhar was present when Law Defendants entered the Snyders’ home under

color of law, and knew or should have known that the Snyders reasonably believed that everyone

present was acting under the apparent authority of the Commonwealth of Virginia and of the

United States.

125. MacFarquhar, knowing this, blocked Mrs. Snyder’s access to the front door when Mrs.

Snyder attempted to go outside and advised her, “I wouldn’t go outside if I were you.”

126. This constitutes an intentional restriction of Mrs. Snyder’s freedom of movement,

without legal right, by use of acts and use of words to which Mrs. Snyder reasonably believed

she must submit.

127. MacFarquhar’s false imprisonment of Mrs. Snyder was done with malice, in bad faith,

and with intentional disregard for and with reckless and callous indifference to the rights of Mrs.

Snyder.

128. Mrs. Snyder was damaged by MacFarquhar’s false imprisonment.

PRAYER FOR RELIEF

Wherefore, Plaintiffs Richard Snyder and Catherine Snyder respectfully pray this Court

grant relief as follows:

Cancellation of the Trademark, reg. no. 2276188, for “DIANE VON FURSTENBERG”.

For damages, including direct damages, consequential damages, and humiliation and

emotional distress under each count, $500,000 against Defendants jointly and severally.

For punitive damages, $350,000 against Defendants jointly and severally.

Attorney fees under 42 U.S.C. § 1988, and 15 U.S.C. § 1116, costs, and such other relief

as this Court shall deem proper.

Plaintiffs request a jury trial for the hearing of this matter.

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Respectfully submitted,
Richard Snyder and Catherine Snyder,
By Counsel

_______/s/__________________
Jonathan A. Nelson
Virginia bar number 75247
Attorney for Richard and Catherine Snyder.
CUCCINELLI & DAY, PLLC
10560 Main Street, Suite 218
Fairfax, Virginia 22030
Phone: (703) 268-5600
Fax: (703) 268-5602
jnelson@cuccinelliday.com

Kenneth T. Cuccinelli, II
Virginia bar number 39490
Attorney for Richard and Catherine Snyder.
CUCCINELLI & DAY, PLLC
10560 Main Street, Suite 218
Fairfax, Virginia 22030
Phone: (703) 268-5600
Fax: (703) 268-5602
ktc@cuccinelliday.com

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