Pentagon Contractor’s Fraudulent Misrepresentation Claim Over Hidden Date Recording by O’Keefe Media Group Can Go Forward

From today’s decision by Judge Amit Mehta (D.D.C.) in Mannina v. O’Keefe Media Group:

In January 2025, Plaintiff Jamie Mannina, then a federal defense contractor, went on what he believed were two genuine dates with a woman named “Heidi.” Unbeknownst to Plaintiff, “Heidi” was actually Defendant [redacted], a person hired by Defendants O’Keefe Media Group (“OMG”) and James O’Keefe to elicit from Plaintiff details about his political views and federal employment history and to film and record his statements. Defendants used this footage of Plaintiff to create videos and articles for a series called “Dating the Deep State,” which Plaintiff alleges paint him as a Pentagon official conspiring with other federal officials to undermine then-President-elect Donald Trump and his incoming administration.

Mannina sued on various grounds; I discussed the court’s treatment of plaintiff’s defamation and false light claim in a separate post, but here’s what the court had to say about the fraudulent misrepresentation claim:

A claim of fraudulent misrepresentation requires proof of “(1) a false representation (2) made in reference to a material fact, (3) with knowledge of its falsity, (4) with the intent to deceive, and (5) an action that is taken in reliance upon the representation.” Plaintiff alleges that [redacted] “knowingly and deliberately misrepresented herself to Mr. Mannina for the purpose of targeting and entrapping him into making remarks that could be distorted for political and harmful purposes.” Using her “inauthentic profile,” falsely represented she was romantically interested in Plaintiff, when in fact “[s]he was simply part of an intentional targeted operation against individuals perceived to be Democrats to materially and falsely discredit them.” And her false representations were “material to inducing” Plaintiff to go on the two dates with [redacted] and discuss his views and career.

{OMG and O’Keefe’s motion does not itself offer any substantive arguments [apparently referring to arguments related to the elements of the fraudulent misrepresentation claim]. It rather accuses Plaintiff of “blam[ing] a lady for not being honest as to her motives” instead of “blaming himself for having a big mouth and spilling secrets.” Apparently, his “audacity is similar to a man who kills his parents and then throws himself upon the mercy of the court, claiming that he is an orphan.”}

Defendants first appeal to the First Amendment. They contend that the First Amendment precludes a fraud claim against undercover journalists both because “a plaintiff cannot use a fraud label to end-run the constitutional safeguards that apply to speech about matters of public concern” and because the First Amendment “does not countenance using fraud claim to punish the publication of truthful information on a matter of public concern.” …

“[T]he Supreme Court has said in no uncertain terms that ‘generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news.'” Food Lion, Inc. v. Cap. Cities/ABC, Inc. (4th Cir. 1999). Thus, “far reaching as they may be,” First Amendment protections “do not place the unlawful acquisition of information beyond the reach of judicial review.” …

To be sure, it will be Plaintiff’s burden to prove that Defendants are liable for damages arising out of Plaintiff’s mental distress, loss of employment, and reputational consequences, and to establish causation as to each. “[B]ut certainly at this point it would be premature to preclude [him] from trying to do so.”

Plaintiff otherwise has plausibly alleged fraudulent misrepresentation. Plaintiff has alleged with sufficient “particularity”—as required by Rule 9(b)—that [redacted], in coordination with OMG and O’Keefe, knowingly made false representations about her political views and purpose for being on Bumble upon which Plaintiff relied to make statements that Defendants recorded, edited, and published, causing the loss of his employment.

Defendants argue that liability for fraud cannot arise out of non-commercial or transactional settings and that the particular context of a date renders misrepresentation and reliance untenable, but they offer no case law to either effect. What’s more, [redacted] ‘s conduct was not akin to simply misrepresenting herself to impress a suitor; she deliberately fabricated a persona and received a fee to elicit information from Plaintiff that she had reason to believe OMG and O’Keefe would use, at least in part, for commercial purposes. {OMG and O’Keefe embedded paid advertisements within all three Videos.} The court therefore will not dismiss the fraudulent misrepresentation claim.