UPDATE:

Whiteley v. DLA Piper et al

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

JEREMY WHITELEY, an individual,

Plaintiff,

vs.

DLA PIPER LLP (US); BREAKING CODE

SILENCE, a California 501(c)(3) nonprofit;

VANESSA HUGHES aka DR. VANESSA

HUGHES; JENNIFER MAGILL (aka JENNY

MAGILL); JESSE TAYLOR JENSEN; and

DOES 1–10, inclusive,

Defendants.

Case No.

COMPLAINT FOR:

1. Malicious Prosecution (against BCS

Defendants)

2. Malicious Prosecution (against

DLA Piper)

[Demand for Jury Trial]

INTRODUCTION

1. Hatred, greed, stubbornness, and pride. These are the attributes that led Defendants

to pursue a frivolous lawsuit against Jeremy Whiteley (“Whiteley”) for 26 months despite repeated

warnings that Defendants’ lawsuit was meritless and that Defendants would eventually be sued for

malicious prosecution.

2. According to Defendants, the Complaint that Defendants filed against Whiteley

stemmed from the fact that there was a short period of time when BREAKING CODE SILENCE’s

(“BCS”) website could not be found on Google Search. BCS falsely claimed that Whiteley caused

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the website to be “deindexed” through the use of his prior administrative credentials. It is unclear

how long the website did not appear on Google Search (if at all), but it was likely less than a day.

3. Throughout the litigation, Whiteley definitively proved that, not only did he not

cause the alleged deindexing, but that it would have impossible for him to do so. Specifically,

Whiteley provided Defendants with concrete evidence that the alleged deindexing request was

submitted on March 9 and Whiteley did not have access to the Google Search console until March

11. Put simply, at the time the alleged deindexing request was made, Jeremy Whiteley did not

have the requisite access to make the request, rendering Defendants’ theory of liability impossible.

4. Whiteley repeatedly brought this temporal flaw, as well as numerous other

exonerating facts, to Defendants’ attention, but for reasons that are inexcusable, Defendants

simply refused to dismiss Whiteley from the case. The litigation dragged along for more than 26

months, requiring Whiteley to incur nearly $1.8MM in attorney fees and costs.

5. Ultimately, Whiteley brought a motion for summary judgment showing that there

was no evidence against him. In response, Defendants finally admitted that they had no “direct

evidence” against Whiteley. Defendants then dismissed the case shortly before the Court could

grant the motion for summary judgment.

6. From the very beginning, the case against Whiteley was frivolous and any attorney

worth their salt would have known it—or at least would have come that realization very early on.

As detailed below, Whiteley was only dragged through 26 months of litigation because BCS’s

principals disliked Mr. Whiteley and used the litigation to extort a financial settlement from him.

For its part, DLA PIPER LLP (US) (“DLA Piper”) agreed to litigate the case against Whiteley,

despite its complete lack of merit, because the case was referred to it by a valuable referral source

(the general counsel of Chipotle) that DLA did not want to disappoint. Thereafter, DLA Piper

litigated the case aggressively in the hopes of staving off the instant malicious prosecution

complaint.

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PARTIES

7. Plaintiff JEREMY WHITELEY (“Whiteley” or “Plaintiff”) is an individual

residing in Peoria, Arizona.

8. Defendant BREAKING CODE SILENCE (“BCS”) is a California 501(c)(3)

nonprofit public benefit corporation with its principal place of business in Los Angeles County,

California. BCS was the plaintiff in the in the underlying action against Whiteley titled, Breaking

Code Silence v. McNamara et al., USDC Case No. 2:22-cv-02052-MAA (the “Federal Action”).

9. Defendant DLA PIPER LLP (US) (“DLA Piper”) is a Delaware limited liability

partnership registered to do business in California with offices in Los Angeles. DLA Piper served

as counsel of record for BCS throughout the Federal Action.

10. Defendant VANESSA HUGHES (“Hughes”), is an individual residing in

Claremont, California. Hughes served as a founding member, president of the board of directors,

and board officer of BCS.

11. Defendant JENNIFER MAGILL, aka JENNY MAGILL (“Magill”), is an

individual residing in Denver, Colorado. Magill served as BCS’s secretary beginning August 2021

and as BCS’s Chief Executive Officer beginning February 2022.

12. Defendant JESSE TAYLOR JENSEN (“Jensen”) is an individual residing in

Sandy, Utah. Jensen served as a BCS officer and as BCS’s designated Rule 30(b)(6) corporate

representative on all technical matters in the Federal Action.

13. Hereinafter, BCS, Hughes, Magill, and Jensen are sometimes collectively referred

to as the “BCS Defendants.

”

14. The true names and capacities, whether individual, corporate, or otherwise of the

Defendants named herein as DOES 1 through 10, are unknown to Plaintiff, who therefore sues

these Defendants by such fictitious names. Plaintiff will amend this Complaint to state their true

names and capacities when the names are ascertained. Plaintiff is informed and believes and,

based thereon, alleges that each such fictitiously named Defendant is in some manner liable for the

acts hereafter alleged. Hereinafter, DLA Piper, the BCS Defendants, and the Defendants named as

DOES 1 through 10 will sometimes collectively be referred to herein as “Defendants.”

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15. Plaintiff is informed and believes, and on that basis alleges, that each Defendant is

and/or was an agent, servant, co-conspirator, and/or employee of each of the other Defendants, and

in doing the things alleged was acting within the course and scope of said agency, conspiracy,

and/or employment.

BACKGROUND

16. Every year, thousands of children branded as “problem children” for a variety of

reasons are sent, often against their wills, to congregate care facilities. Although these facilities

market themselves as providers of therapeutic treatment, many simply collect public funding and

abuse and mistreat the children.

17. For decades, advocates have sought to raise attention to these issues, reform the

congregate care facilities, and stop the institutional child abuse. The phrase “Breaking Code

Silence” is commonly used by those involved in this movement because “Code Silence” is a

common punishment used by congregate care facilities.

18. On March 22, 2021, Whiteley, a survivor of Provo Canyon School, teamed up with

defendants Hughes, and Magill and third party, Katherine McNamara (“McNamara”) to

incorporate BCS. Although it never accomplished much of anything, the organization was

supposed to advocate for congregate care reform. Because he was a technology professional,

Whiteley (along with McNamara) helped BCS set up its website and other technologies.

Hughes’s Hatred

19. Whiteley only volunteered as a board member for BCS for approximately three

months starting in March of 2021. During those few months, Hughes targeted Whiteley due to

Whiteley’s sexuality as a gay man. Specifically, Hughes regularly and consistently used offensive

epithets to and about Whiteley such as “mangina,” “pookie,” and “drama queen.” Hughes often

told Whiteley to “suck [her] dick,” or to “eat [her] ass,” that Whiteley could “borrow [her] dick

and suck it,” or that Whiteley himself should “suck dicks,” “eat ass,” etc. Both in and outside of

Whiteley’s presence, Hughes would complain about Whiteley’s negative “female energy.”

Whiteley is not an effeminate man and found these comments to be extremely offensive.

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20. Hughes also regularly belittled Whiteley, calling him names such a “fucking fat

ass,” “sociopathic gem,” “buttface,” and a “little bitch.” Hughes would often gaslight, yell at, and

otherwise harass Whiteley during board meetings. More than once, Hughes also called Whiteley at

night, while drunk, and proceeded to yell at and abuse Whiteley.

21. On the several occasions when Whiteley attempted to confront Hughes about her

abusive behavior, Hughes dismissed Whiteley’s complaints telling Whiteley to “go eat Chick-Fil-

A and get over it,” “go get a puppy,” “suck [her] dick,” or “stop being a mangina.” The abuse

adversely affected Whiteley’s mental health and he had no alternative but to resign.

The BCS Defendants’ Greed

22. Immediately after Whiteley resigned, Hughes began pressuring the board of

directors to sue Whiteley. When other board members explained that BCS had no grounds to sue

Whiteley, Hughes started to “brainstorm” reasons to sue Whiteley and would attempt to workshop

these potential causes of action with the other board members. On at least one occasion, Hughes

mentioned that Whiteley had a “nice umbrella policy” that BCS could go after.

23. On July 4, 2021, Hughes directed BCS leadership to maintain secrecy about these

communications, stating: “I think a good lesson is it [sic] our venting shit talk must remain in this

channel and we need to have an ironclad agreement with each other about what goes on.”

24. On July 12, 2021, Hughes stated in BCS internal communications that she wanted

to “screatch [sic] off all Jer’s flesh,” referring to Plaintiff.

25. On July 21, 2021, in a slack chat, Hughes said “Let’s get rid of anything that we

don’t like about what Jeremy dead [sic]. We don’t have to worry about his mangina anymore.”

26. After Whiteley’s resignation, Hughes turned on McNamara, the only other gay

member of the board of directors. Ultimately, McNamara was also pressured to resign effective

December 2021. Immediately after McNamara’s resignation, Hughes began threatening to have

BCS sue McNamara. Again, Hughes did not have any particular theory in mind, only a desire to

sue McNamara for financial gain.

27. On December 15, 2021, right after McNamara’s resignation and months before the

alleged deindexing, Magill sent Hughes text messages containing links to articles on how to sue

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someone under the Computer Fraud and Abuse Act (“CFAA”).

28. Hughes and Magill then reached out to Chelsea Papciak and Jenna Bullis to

brainstorm a plan to sue McNamara. The four of them explicitly agreed that BCS would sue

McNamara and that Papciak and Bullis would “do all possible to support the case to prevail,”

including providing evidence and declarations. In exchange for their participation, Papciak and

Bulis were promised a percentage share of any litigation recovery. The internal communications

suggest that the plan was to extort $3,000,000 from McNamara.

29. All of this happened before the alleged “deindexing” occurred.

The Alleged Deindexing

30. In early March 2022, Hughes was making changes to BCS’s website located at

www.breakingcodesilence.org (the “.Org Domain”). According to BCS, after making the changes,

Hughes searched for BCS’s website on Google Search to see how the changes looked. However,

when she searched for the website on Google, she could not find it.

1

31. BCS then launched an “investigation” into why the website was not appearing on

Google. The first primary investigator was Noelle Beauregard. Beauregard’s investigation was

simple. First, on March 11th

, she signed onto the Google Tools2 and saw that herself, Megan

Hurwitt, and Jeremy Whiteley each were listed as having “ownership” access. Second, Beauregard

saw on the Google Search Console that two requests to temporarily remove the .Org Domain from

Google Search were submitted on March 8th, but were cancelled, and a third request was made on

March 9th, resulting in a temporary removal. Beauregard never saw anything informing her who

submitted the deindex requests. She then turned the investigation over to Jensen.

32. Like Beauregard, Jensen looked at the Google Tools to see that requests to

temporarily remove the .Org Domain from Google Search were made on March 8 and 9, 2022.

1 The most likely scenario is that Hughes “deindexed” the .Org Domain while making changes to

the website.

2 “Google Tools” collectively refers to the Google Webmaster Central and the Google Search

Console. At the time, they were different tools provided to domain owners and webmasters for

monitoring site interactions with Google. The two tools have since be combined into a single tool.

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Jensen also saw that when he signed on to the Google Webmaster on March 11 (two days after the

request), Whiteley had ownership access. Based on these facts, and having been told by Hughes

that Whiteley and McNamara were known “hostiles” to BCS, Jensen concluded that it must have

been they who submitted the deindex request.

33. Importantly, during the investigation, Jensen took screenshots of the “Ownership

History” for the Google Search Console. These screenshots unequivocally show that Whiteley was

not delegated the ability to access the Google Search Console until March 11, 2022—two days

after the alleged deindex request. Thus, from the very beginning, BCS had in its possession

definitive evidence that Whiteley could not have caused the deindexing through the use of his

administrative credentials.

DLA Piper’s Wrongful Conduct

34. On March 14, 2022, fourteen days before the Federal Complaint was filed, Hughes

sent an email to Roger Theodoredis (“Theodoredis”), the general counsel for Chipotle Mexican

Grill (“Chipotle”) a draft complaint, identifying Whiteley by name as responsible for the alleged

deindexing and briefing Theodoredis on planned litigation against Whiteley and McNamara.

35. Theodoredis then referred BCS to DLA Piper. Plaintiff alleges on information and

belief that Theodoredis convinced DLA Piper take the case on a pro bono basis and that DLA

Piper agreed to do so because Theodoredis was an important referral source for DLA Piper.

Indeed, at the time, DLA Piper was representing Chipotle in numerous litigation matters including

a series of coordinated PAGA lawsuits.

36. On March 28, 2022, DLA Piper filed the Federal Complaint in the Central District

of California against Whiteley and McNamara. The majority of the allegations were against

McNamara. The principal allegation against Whiteley was that he supposedly violated the CFAA

by using his administrative credentials to access the Google Search Console and causing BCS’s

website to be deindexed from Google Search. As explained above, the allegation is not only false,

but impossible because Whiteley was not granted administrative access until two days after the

alleged deindexing request was allegedly made.

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37. The Complaint was signed by Tamany Bentz (“Bentz”). By signing the complaint

Bentz certified that the factual contentions had evidentiary support. However, many of the

Complaint allegations were so patently false that no reasonable attorney would have included

them in a federal court pleading, including specifically the allegation that the investigation into the

alleged deindexing was led by “forensic data privacy experts.” Neither Jensen nor Beauregard are

forensic experts and, as Defendants would later concede, no such experts were ever engaged.

38. The complaint came as a shock to Whiteley, as he was never given a demand letter

or other type of notice. After reading the complaint, on March 29, 2022, Whiteley navigated to the

Google Search Console in an attempt to understand what he was being accused of. When Whiteley

accessed the Google Search Console on March 29, 2022, Google sent an automated message to

Jensen informing Jensen that Whiteley had been added as a “New Owner.” Thus, Defendants had

explicit evidence that Whiteley did not visit the Google Search Console until well after the alleged

deindexing. Despite actual knowledge that Whiteley could not have deindexed the BCS website

through the Google Search Console, Defendants continued to litigate the matter for another 25

months.

39. On May 25, 2022, Bentz sent a settlement demand on behalf of BCS to resolve the

case. The demand included a variety of things that were not recovered in the Federal Action,

including: (1) the demand that Whiteley and McNamara transfer certain intellectual properties to

BCS, some of which Whiteley and McNamara did not even own; and (2) that Whiteley and

McNamara reimburse BCS $79,000 for money that BCS had previously spent in unrelated

litigation. The document all but proves that Defendants were seeking to use the Federal Litigation

for an improper purpose.

40. On June 1, 2022, Whiteley and McNamara’s counsel served DLA Piper with a

detailed letter pursuant to FRCP, Rule 11, warning DLA Piper that the Complaint allegations were

baseless and demanding that DLA Piper provide evidentiary support or face sanctions for

prosecuting frivolous claims. DLA Piper never substantively responded to the Rule 11 letter and

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never provided any evidentiary support.3

41. In 2023 a series of depositions and related events all explicitly put DLA Piper on

notice that the case it was litigating was not only meritless, but malicious. Despite the

overwhelming, mounting evidence, DLA Piper failed to withdraw as counsel and continued to

aggressively litigate the case.

42. First, in February 2023, after eleven months of active litigation, Hughes and Magill

began searching for a cybersecurity expert willing to testify that evidence of unauthorized access

by either defendant existed. They were unable to find a single cybersecurity expert willing to state

on the record that Whiteley had caused the alleged deindexing.

43. On March 31, 2023, DLA Piper attended the deposition of Beauregard, the initial

investigator into the alleged deindexing. At her deposition, Beauregard plainly confirmed that she

could not tell who submitted the alleged deindexing requests. Beauregard acknowledged the

screenshots she took that definitely showed Whiteley did not have administrative access at the

time of the deindexing – putting DLA Piper on further notice that their theory of liability against

Whiteley was impossible.

44. On April 14, 2023, DLA Piper attended the deposition of Jensen, who was

appearing as BCS’s “person most knowledgeable” about BCS’s investigation into the deindexing.

Jensen was specifically asked whether BCS had any evidence that would show that Whiteley had

access to the Google Search Console on March 9, 2023 when the deindexing request was allegedly

submitted. Jensen, a designated representative of BCS, conceded that BCS had no such evidence.

Jensen further testified that he had in his possession a backup of the BCS web server from March

2022, the month of the alleged deindexing. Despite Court orders that he do so, Jensen never

produced this backup-presumably because the backup would have exonerated Whiteley.

45. On April 20, 2023, DLA Piper attended the deposition of William Boyles, a former

BCS board member. Boyles confirmed that Hughes told him that she wanted to sue Whiteley after

Whiteley’s resignation and that Hughes asked Boyles to help her workshop different legal theories

3 DLA Piper limited its response to procedural arguments regarding Rule 11.

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that Hughes had brainstormed up.

46. Following these depositions, on June 5, 2023, Plaintiff’s counsel served DLA Piper

with a second detailed letter referencing deposition admissions and explicitly warning of

malicious prosecution claims against the BCS board and DLA Piper.

47. Things continued to go downhill for Defendants from there. On July 18, 2023,

Bentz attended the deposition of Chelsea Papciak (aka Chelsea Filer). During the deposition,

Papciak admitted that, well before the alleged deindexing, there were discussion between Hughes

and Papciak in which Hughes proposed a plan to have BCS sue McNamara and share a portion of

the recovery against McNamara.

48. Shortly thereafter, Bentz withdrew as counsel for DLA Piper and John Gibson

(“Gibson”) the Co-Chair of business and litigation in the United States took over as the lead

attorney.

49. On August 23, 2023, Plaintiff’s counsel served DLA Piper with a third detailed

letter documenting 15 months of discovery that produced zero evidence of unauthorized access,

and warning of imminent sanctions and malicious prosecution liability. As the letter explained,

undisputed facts showed it was impossible for Whiteley to have caused the alleged deindexing.

Defendants never responded to the letter and continued to aggressively litigate the case.

50. On November 13 and 14, 2023, Gibson attended both days of the deposition of

BCS ‘s Chief Executive Officer Magill who was appearing as BCS’s “person most

knowledgeable” on the issue of damages. Gibson heard Magill testify under oath that BCS’s

claimed damages from the alleged deindexing were “impossible to give a specific number” and

that she, as the person most knowledgeable on the issues of damages could not identify any

quantifiable financial harm caused by the alleged deindexing beyond speculation. This evidence

effectively doomed BCS’s case as, in order to have standing to bring a claim under the CFAA,

BCS had to prove that it suffered at least $5,000 in damages.

51. Despite all of the above, DLA Piper did not withdraw from the case and continued

to litigate the case aggressively.

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Favorable Termination

52. On November 22, 2023, Whiteley filed his motion for summary judgment. The

summary judgment motion presented undisputed facts that (1) Whiteley did not cause the alleged

deindexing, (2) BCS had no evidence to the contrary, (3) it was impossible for Whiteley to have

caused the alleged deindexing because he did not have the administrative access at the time of the

alleged deindexing, and (4) BCS lacked standing anyway as BCS had not suffered any cognizable

damages. In support of his motion, Whiteley submitted the declaration from his forensic expert

who likewise opined from his review of the technical evidence that there was no evidence that

Whiteley caused the alleged deindexing.

53. On February 15, 2024, BCS’s filed its Opposition to Whiteley’s Motion for

Summary Judgment. In its Opposition, BCS admitted that it had no “direct evidence” against

Whiteley and presented no evidence to counter Whiteley’s impossibility argument. What little

“evidence” BCS presented lacked foundation, was inadmissible “character” evidence, and

contradicted the deposition testimony of BCS’s own designated witness on the issue of damages.

54. On February 29, 2024, Whiteley’s Reply Brief slammed the point home, firmly

establishing that Whiteley did not, and could not, have caused the alleged deindexing.

55. Against this backdrop, the parties attended an in-person informal discovery

conference on March 25, 2024 related to BCS’s repeated failures to comply with the Court’s

discovery orders. At the hearing, the Court admonished BCS that its persistent discovery failures

were severe enough to warrant terminating sanctions sua sponte. Whiteley’s counsel explained

that Whiteley was not interested in terminating sanctions because Whiteley was innocent and

desired to clear his name. Instead, Whiteley’s counsel asked the Court to impose the evidentiary

sanction of striking Jesse Jensen’s declaration submitted in opposition for summary judgment. The

end result would be the same (victory for Whiteley), only under this approach there would be a

termination on the merits.

56. On April 5, 2024, the Court held a further hearing on the issue of evidentiary

sanctions. The court initially explained that she had tried every possible trick she knows to get the

parties to reach a resolution “short of the very harsh sanctions that could result from this motion,”

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but that her efforts to resolve the issue short of evidentiary sanctions had been unsuccessful. At

this point, Gibson informed the Court that BCS would be willing to voluntarily dismiss the case

with prejudice if the court would agree to not impose crippling financial sanctions on BCS. The

Court indicated that she could not make that promise, and inasmuch as the dismissal had not yet

been filed, the Court explained what would happen if the case was not dismissed. The Court

specifically invited Whiteley to submit an updated motion for evidentiary sanctions that was

specific about the evidentiary and/or issue sanctions being requested. The Court warned that if the

sanctions were severe enough to essentially be tantamount to terminating sanctions, Whiteley

needed to provide an analysis under Leon v. JDC Sys. Corp. (9th Cir. 2006) 464 F.3d 951 to justify

the imposition of such sanctions. The Court referenced Jensen by name and the fact he was

withholding relevant documents. The Court finally noted that she could not rule on Whiteley’s

motion for summary judgment until she knew which evidence she could rely upon, suggesting she

was about to strike Jensen’s declaration.

57. Five days later on April 9, 2024, in the face of fully briefed motion for summary

judgment, which was almost certain to be granted on its own merits, along with the pending

evidentiary sanctions motion, BCS filed its request for dismissal with prejudice. The Court entered

the dismissal on May 8, 2024.

FIRST CAUSE OF ACTION

Malicious Prosecution

(Against the BCS Defendants)

58. Plaintiff incorporates by reference the allegations of paragraphs 1 through 52 as

though fully set forth herein.

59. As Magill testified in her capacity as the person most knowledgeable for BCS,

Hughes, Magill, and Jensen were the ones who caused BCS to sue Whiteley in the Federal Action

for allegedly deindexing the .Org Domain.

60. The allegation that Whiteley supposedly used his administrative credentials to

deindex BCS’s website was meritless. Given the information that the BCS Defendants

possessed—including specifically records that showed that Whiteley lacked the requisite

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administrative access at the time when the alleged deindexing request was made—no reasonable

person would have believed the allegation to have merit at the time the Federal Action was filed.

61. Thereafter, despite the fact the BCS Defendants were repeatedly provided with

concrete evidence that Whiteley did not (and could not) have caused the alleged deindexing,

Defendants continued to refuse to dismiss Whitely and directed DLA Piper to litigate the case

aggressively. No reasonable person would have continued to litigate the Federal Action against

Whiteley given the evidence that the BCS Defendants were provided with.

62. The BCS Defendants’ choice—both to initiate the action against Whiteley and to

continue to pursue it for 26 months in the face of clear evidence of Whiteley’s innocence—was

motivated by malice and improper purposes.

63. As a proximate result of the BCS Defendants’ actions, for which the BCS

Defendants are jointly and severally liable, Whiteley suffered harm in an amount to be determined

at trial, estimated to exceed $5,000,000, which includes, without limitation: (a) $1,752,046.15 in

attorney fees and costs reasonably and necessarily incurred in defending against the Federal

Action; and (b) past and future medical, psychiatric, psychological, and pharmaceutical expenses,

incurred and reasonably certain to be incurred, in the diagnosis and treatment of Post-Traumatic

Stress Disorder and the stress-induced exacerbation of a pre-existing chronic medical condition.

64. The conduct of the BCS Defendants alleged herein was undertaken with malice,

oppression, and fraud within the meaning of California Civil Code section 3294, in that the BCS

Defendants knew that the allegations against Whiteley in the Federal Action were false and lacked

probable cause, yet pursued and continued to pursue the Federal Action for 26 months with the

improper purposes of harassing Whiteley and coercing a financial settlement, in conscious disregard

of Whiteley’s rights. The wrongful conduct was authorized, directed, and ratified by Hughes,

Magill, and Jensen, each of whom was an officer, director, and/or managing agent of BCS within

the meaning of Civil Code section 3294(b). Whiteley is therefore entitled to recover punitive and

exemplary damages in an amount sufficient to punish the BCS Defendants and deter similar conduct.

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SECOND CAUSE OF ACTION

Malicious Prosecution

(Against DLA Piper and DOES 1-10)

65. Plaintiff incorporates by reference the allegations of paragraphs 1 through 58 as

though fully set forth herein.

66. DLA Piper was BCS’s attorney of record in the Federal Action. In that capacity,

DLA Piper was obligated under Rule 11 of the Federal Rules of Civil Procedures to be informed

about the information in its pleadings, motions, and other court filings, and to ensure that (a) those

filings were not presented for improper purpose, such as to “harass, cause unnecessary delay, or

needlessly increase the cost of litigation”; and (b) the legal and factual contentions within those

filings were “warranted.”

67. Even assuming (arguendo) that it was reasonable for DLA Piper to rely on the

representations of its client at the time the Federal Action was filed, DLA Piper is liable for

malicious prosecution. Throughout the litigation DLA Piper was repeatedly provided with

concrete evidence that Whiteley did not cause—and could not have caused—the alleged

deindexing. Yet despite the mounting evidence, DLA Piper refused to withdraw and continued to

aggressively litigate the case.

68. DLA Piper’s decision to continue to aggressively litigate the case in the face of

clear evidence of Whiteley’s innocence was motivated by a purpose other than succeeding on the

merits of the claim: namely, to needlessly increase the cost of litigation to grind down Whiteley

and to force his concession despite the unwarranted contentions. Indeed, no reasonable attorney

would have believed that there were grounds to continue to pursue the lawsuit against Whiteley

when presented with the evidence given to DLA Piper; and a responsible attorney, mindful of the

obligations under Rule 11, would have instructed his or her client to drop the unwarranted claims

or the attorney would have withdrawn from representing the client. DLA Piper did neither.

69. As a proximate result of DLA Piper’s actions, for which DLA Piper and DOES 1

through 10 are jointly and severally liable, Whiteley suffered harm in an amount to be determined

at trial estimated to be at least $5,000,000, which includes without limitation which includes,

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without limitation: (a) $1,752,046.15 in attorney fees and costs reasonably and necessarily

incurred; and (b) past and future medical, psychiatric, psychological, and pharmaceutical

expenses, incurred and reasonably certain to be incurred, in the diagnosis and treatment of Post-

Traumatic Stress Disorder and the stress-induced exacerbation of a pre-existing chronic medical

condition.

70. DLA Piper’s conduct went beyond zealous advocacy; it was malicious, oppressive,

and fraudulent within the meaning of California Civil Code section 3294, in that DLA Piper knew

or—after reasonable investigation following (a) three Rule 11 notice letters, (b) the Beauregard

deposition, (c) the Jensen Rule 30(b)(6) deposition, and (d) the Magill damages deposition—was

deliberately indifferent to the fact the Federal Action allegations against Whiteley were

demonstrably false and lacked probable cause, yet DLA Piper filed and continued to prosecute the

Federal Action for 26 months for purposes other than succeeding on the merits, in conscious

disregard of Whiteley’s rights.

71. The wrongful conduct was authorized, directed, and ratified by attorneys who were

partners and/or managing agents of DLA Piper within the meaning of Civil Code section 3294(b),

including Tamany Bentz and John Gibson.

72. Whiteley is therefore entitled to recover punitive and exemplary damages in an

amount sufficient to punish DLA Piper and deter similar conduct.

PRAYER

WHEREFORE, Plaintiff prays for judgment against Defendants DLA Piper, Breaking

Code Silence, Vanessa Hughes, Jennifer Magill aka Jenny Magill, Jesse Jensen and DOES 1

through 10, and each of them, as follows:

1. For general, actual, compensatory, and consequential damages in an amount to be

determined at the time of trial in an amount in excess of the jurisdiction of this Court,

not less than $5,000,000;

2. For special damages in an amount to be determined at the time of trial;

3. For prejudgment interest;

4. For exemplary and punitive damages due to Defendants’ intentional, willful, and

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5. 6. malicious conduct, pursuant to California Civil Code section 3294;

For costs of suit incurred herein; and

For such other and further relief as the Court deems just and proper.

Dated: May 7, 2026 JULANDER, BROWN & BOLLARD

By:

M. Adam Tate

Attorneys for Plaintiff

JEREMY WHITELEY

Whiteley v. DLA Piper et al