09821-00001/12305791.1

STATE OF NEW HAMPSHIRE

ROCKINGHAM, SS SUPERIOR COURT

Civil Action No. 218-2020-CV-00673

BLYTHE BROWN,

Plaintiff,

v.

DANIEL GERHARD BROWN

Defendant.

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PLAINTIFF’S OBJECTION TO DEFENDANT’S MOTION TO DISMISS

1. Plaintiff Blythe Brown hereby objects to the Motion to Dismiss filed by Defendant

Daniel G. Brown on July 29, 2020. (Mot., Index # 23 (Sealed); Index # 24 (Public)).

I. INTRODUCTION

2. Plaintiff Blythe Brown filed substantial, specific and factually supported claims

against Defendant Dan Brown, arising out of Defendant’s perjury and other misconduct.

Defendant’s Motion to Dismiss inaccurately asserts that the entirety of Plaintiff’s claims arise out

of insufficiently pled allegations. He also sets up proverbial strawmen to then knock down,

improperly recasting each and every one of Plaintiff’s seven counts and resting on an incorrect

description of the Complaint and the nature of this lawsuit.

3. Contrary to Defendant’s mischaracterizations, this is not a case about whether

Defendant could spend “some of his own earnings during the course of the marriage” without

FiledFile Date: 8/28/2020 12:43 PMRockingham Superior Court

E-Filed Document

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Plaintiff’s “pre-approval.” (Mot., ¶¶ 1, 8, 13). Rather, this is a case about Defendant’s knowingly

perjurious statements in violation of RSA 458, § 15-b, and his wide-ranging fraud, serial

misrepresentations, and material omissions regarding the Parties’ marital assets, finances, and

Defendant’s ongoing and anticipated projects and works. This case is also about Defendant’s

improper interference with assets that would have been part of the marital estate at the time of the

divorce had he been truthful and not hidden them, but rather disclosed them as required by law.

Finally, this case is also about the emotional distress that Defendant inflicted upon Plaintiff through

his fraudulent and tortious conduct.

4. Defendant’s attempts to mischaracterize the Complaint he seeks to dismiss based

upon his reframing and narrowing of Plaintiff’s claims must fail. Additionally, Defendant cannot

use the provision in the Divorce Decree regarding the transfer of intellectual property to shield

himself from liability for his perjurious statements about his projects that were in the works or

anticipated as of the date of divorce. For these, and the reasons more fully articulated herein,

Defendant’s Motion to Dismiss should be denied in its entirety.

II. FACTUAL BACKGROUND

5. In response to Defendant’s factual background and attempts to re-write Plaintiff’s

pleadings, Plaintiff provides this brief statement of facts.

6. Plaintiff Blythe Brown and Defendant Dan Brown married in 1997, and enjoyed a

successful personal and professional partnership together. (Complaint, ¶¶ 4, 19). Following

several years of unsuccessful artistic pursuits, the couple achieved great success in 2003 with the

publishing of The Da Vinci Code, which became an international best-seller. (Id., ¶¶ 5–8, 20–26).

As Defendant recognized and detailed under oath in a statement submitted to a London court in

2005, Plaintiff had a pivotal role in developing The Da Vinci Code’s key themes, and was the

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principal researcher and first-line editor for the novel. (Id., ¶¶ 24–25). And, The Da Vinci Code

was just the beginning of their success. (Id., ¶¶ 8, 27).

7. However, after over two decades of marriage and several collaborations on literary

successes, in August 2018, Defendant informed Plaintiff that he wanted to separate. Defendant

told Plaintiff that they had simply “grown apart” but he assured her that they would remain close

companions and the best of friends. (Id., ¶¶ 10–12, 32–33). Defendant pushed for a quick, quiet,

and amicable divorce, away from the glare of the paparazzi. He assured Plaintiff that she knew

everything about the nature and extent of the assets acquired during their nearly twenty-two-year

marriage, and that she could trust him. (Id., ¶¶ 11–12, 32–34, 59–61). Defendant then submitted

to the divorce court a sworn affidavit of financial assets and prospects that was riven with untruths.

Needless to say, Plaintiff detrimentally relied on Defendant’s statements and representations and

omissions about the state of their relationship and the nature and amount of their assets at the time

of the divorce. (Id., ¶¶ 12, 33–35, 41).

8. However, shortly after the Parties’ divorce was finalized in December 2019,

Plaintiff discovered the truth: Defendant had been secretly leading a double life for several years,

and had made various fraudulent misrepresentations and omissions to Plaintiff to coerce her into

agreeing to a quick, quiet and amicable divorce on the terms he wanted. (Id., ¶¶ 13, 38).

9. For example, Defendant’s financial affidavit, signed and sworn to on October 2,

2019, and filed on October 24, 2019 in the 10th Circuit, Family Division in Portsmouth, stated that

he had no (Id., ¶¶ 35, 59). But, as Plaintiff later learned,

that was untrue. Defendant had several projects in progress as of October 2019, including a new

television series based on the recurring character in his novels entitled, “Langdon;” a MasterClass

series; a children’s book, music project and app, Wild Symphony; and a new Robert Langdon novel.

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(Id., ¶¶ 59–61). As he well knew, Defendant stands to make millions from these projects, but he

hid them from Plaintiff. (Id., ¶ 61).

10. Plaintiff also learned that Defendant had been financially supporting his secret

mistress, JP, with whom he was carrying on a six year-long affair, completely unbeknownst to

Plaintiff. (Id., ¶¶ 33, 42–52). Defendant had dissipated the marital estate by siphoning significant

funds to JP over the course of several years, using various methods, accounts, and agents. (Id.).

Yet, to induce Plaintiff to agree to forgo a protracted divorce proceeding, Defendant assured

Plaintiff that she had full knowledge of their marital finances and assets—this representation, of

course, was false. (Id., ¶¶ 11–12, 32–35). Plaintiff also learned that Defendant had purchased two

(quite expensive) prize horses, Da Vinci and LimiTed Edition (the “Concealed Horses”), for JP’s

use in setting up her horse training business, as her “sponsor.” (Id., ¶¶ 44–52, 57). The Defendant

even secured the funds by lying to their financial advisor, that the hundreds of thousands of dollars

he was withdrawing and transferring was for a birthday present for his then wife, the Plaintiff. (Id.,

¶¶ 44, 47; see also Answer, ¶¶ 44, 47).1 The Concealed Horses were not disclosed as assets, as

required, on Defendant’s financial affidavit. (Complaint, ¶ 52; see also Answer, ¶¶ 42, 44, 47–48

(Defendant admits to purchasing the Concealed Horses)).

11. Moreover, the affidavit specifically required that it be updated as new information

came to light. But Defendant never did so. (Complaint, ¶ 35).

1 The Court may consider Defendant’s Answer for purposes of Plaintiff’s Objection to

the Motion to Dismiss because the Answer is properly before the Court as a pleading, or a

“document[] the authenticity of which [is] not disputed by the parties.” Beane v. Dana S. Beane

& Co., P.C., 160 N.H. 708, 711 (2010) (quoting Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993)).

09821-00001/12305791.1 5

III. ARGUMENT

12. To defeat a motion to dismiss, Plaintiff need only provide a plain statement of a

claim that is “reasonably susceptible of a construction that would permit recovery.” Sanguedolce

v. Wolfe, 164 N.H. 644, 645 (2013) (quoting Gen. Insulation Co. v. Eckman Constr., 159 N.H. 601,

611 (2010)). The Court must accept the pleadings to be true and construe all reasonable inferences

in the light most favorable to Plaintiff. Sanguedolce, 164 N.H. at 645. “If the facts as alleged

would constitute a basis for legal relief, the motion to dismiss should be denied.” Provencal v.

Vermont Mut. Ins. Co., 132 N.H. 742, 745 (1990) (quoting Collectramatic, Inc. v. Kentucky Fried

Chicken Corp., 127 N.H. 318, 320 (1985)). “This is a threshold inquiry, requiring the court to test

the facts in the complaint against the applicable law.” Provencal, 132 N.H. at 745 (citing Jay

Edwards, Inc. v. Baker, 130 N.H. 41, 45 (1987)).

A. The Court Should Deny the Motion to Dismiss Plaintiff’s Claim for Defendant’s Violation of RSA 458, § 15-b (Count I) Based on Defendant’s

False Statements Regarding His Assets and Projects.

13. Plaintiff’s Complaint alleges specific facts clearly demonstrating that Defendant

made false statements and omissions on his financial affidavit in violation of RSA 458, § 15-b.

(Complaint, ¶¶ 64–67). Whether he did so, with regard to both his financial assets and his

is a question of fact, not resolvable at the motion to dismiss stage.

Mandiram v. G & G, LLC, No. 2007-0572, 2008 WL 11258709, at *3 (N.H. July 8, 2008) (“It is

not appropriate to resolve a factual matter … on a motion to dismiss.”).

14. And the repeated statement that Defendant simply spent his own earnings during

the marriage (which pertains to asset disclosure and not to pending and future projects) would

allow a spouse to dispose of assets on one day and swear the next day that he has no assets. New

Hampshire law allows no such sleight-of-hand. See In the Matter of Brownell, 163 N.H. 593, 600

(2012) (Citation omitted) (“Given the purpose of RSA 458:16-a (2004), which is to achieve equity,

09821-00001/12305791.1 6

we hold that it would be contrary to legislative intent to ‘permit one spouse to squander marital

property and render it impossible to make an equitable award of property.’”). As stated in that

case, “dissipated property must be distributed like any other.” Id. (Citation omitted). Discovery

and an evidentiary trial are needed in order to demonstrate that Defendant did not simply “spend

his own earnings,” as if he was buying himself a new suit or a new car, or supporting the Parties’

joint lives as husband and wife or otherwise.

15. Defendant nevertheless argues that Plaintiff has not plausibly alleged Defendant’s

violation of RSA 458, § 15-b. RSA 458, § 15-b provides that a party “aggrieved by a false

statement in a financial affidavit” filed in a New Hampshire divorce proceeding may “file a civil

action” and, upon proof of such a knowing false statement, “shall be entitled to receive treble

damages and attorney’s fees.”

16. Contrary to Defendant’s mischaracterizations, Plaintiff does not allege that

Defendant falsely disclosed “how he spent his earnings during the marriage” on his financial

affidavit. (Mot., ¶ 12) (Emphasis in Original). The financial affidavit does not ask for a disclosure

of the Parties’ historical spending. Rather, Plaintiff alleges that Defendant “misrepresented and

omitted material facts, information and data regarding the Browns’ marital assets and finances,”

and Defendant’s own “assets, finances and projects” on his financial affidavit. (Complaint, ¶ 65).

17. Specifically, on Defendant’s financial affidavit, with respect to his

he indicated there were (Complaint, ¶¶ 12, 35, 59).

Plaintiff alleged that Defendant’s statement was knowingly false and that he in fact had several

such at the relevant time, including when he signed his sworn

financial affidavit on October 2, 2019, and submitted it to the divorce court on October 24, 2019.

(Id., ¶¶ 12, 35, 59–61). Additionally, Plaintiff alleged that Defendant failed to disclose relevant

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assets at the time of the Browns’ divorce, including his ownership of two prized Friesian horses:

LimiTed Edition and Da Vinci, as well as the assets and monies that should have been subject to

the marital estate at the time of the divorce had Defendant not conveyed those assets to his mistress.

(Id., ¶¶ 41–52). Thus, when Defendant swore that he

he made additional false statements. (Id.,¶ 35).2

18. Plaintiff’s Complaint provides a detailed account of how and when Defendant

purchased the Concealed Horses. (Id., ¶¶ 44–50). The Complaint further alleges that Defendant

was the owner of these horses at the time of the divorce, that he did not disclose the assets on his

financial affidavit as required, and that these horses constituted part of the marital estate subject to

equitable division at the time of the divorce. (Id., ¶¶ 50–52). Contrary to Defendant’s Motion,

Count I of the Complaint does not rest on a claim that Defendant failed to report his “historic

spending” or procure “pre-approval” for such spending during the marriage. (Mot., ¶¶ 13, 19).

Thus, Defendant’s Motion neither addresses nor moves to dismiss Count I with respect to the

Concealed Horses.

19. Defendant admits that he purchased the horse, Da Vinci, from the Parties’ joint

account. (Answer, ¶ 42). He further admits that, to purchase a second prized horse, he lied to the

Parties’ joint financial advisor that the funds were being used to buy a birthday gift for the Plaintiff.

2 Plaintiff’s Complaint also alleged that Defendant transferred large sums to his mistress,

JP, which were unknown to Plaintiff, which should have been subject to the marital estate at the

time of the divorce. (Complaint, ¶ 42). In Defendant’s Answer, which he filed simultaneously

with his Motion to Dismiss, he stated that he listed one “purportedly ‘secret’ account” number on

his financial affidavit. (Answer, ¶ 65). Defendant made no mention of this argument in his Motion

to Dismiss, nor could he because whether he fully disclosed the actual nature and contents of that

secret account, and all accounts and assets he owned, is a factual dispute. Additionally, because

of the deceptive nature of Defendant’s conduct, Plaintiff currently is not in a position to know the

full extent of Defendant’s false statements at the time of the divorce, and Plaintiff therefore seeks

a full accounting from Defendant. (Complaint, at 23).

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(Id., ¶¶ 44, 47). Defendant vaguely states that he “promptly gifted” LimiTed Edition to his

mistress JP thereafter—which is a claim Plaintiff will show is an outright lie, as he well knows

(interestingly, Defendant makes no mention of who owns Da Vinci now). (Id.). Defendant is not

entitled to recast the Complaint the way he would like it to read and then dismiss it by prevaricating

to the Court. Rather, the Complaint must be accepted at this stage as true (as indeed it is), not re-

written by the Defendant. See Sanguedolce, 164 N.H. at 645. And as to other questions regarding

Defendant’s expenditures—these require evidence and proof, not protestations from a party who

now claims he was just trying to avoid personal embarrassment.

20. As for Defendant’s Defendant’s own Motion

acknowledges that what projects Defendant was working on at the time of the divorce is a factual

issue “inappropriate for inclusion in a motion to dismiss.” See Mot. at 4, n.3 (“The Complaint

alleges that Defendant is also liable based on the theory that he did not disclose in his financial

affidavit all Those theories turn on inaccurate factual

assertions, and so are inappropriate for inclusion in a motion to dismiss. Hence, were this

motion to be allowed with regard to Defendant’s financial disclosures alone, the dismissal would

be partial.”) (Emphasis Added) (Internal citation omitted).

21. All that is left then of Defendant’s argument to dismiss Count I is that, in the same

proceeding in which Defendant falsely represented that he had no

he purportedly procured an assignment and transfer from Plaintiff of the underlying rights

to such works. (Id., ¶ 14). But Defendant cannot rely on a transfer of intellectual property rights—

which was procured by false representations and omissions in violation of New Hampshire law

about the existence of his in-progress and anticipated works and his plans to retire—as a shield in

09821-00001/12305791.1 9

this litigation. At most, how that assignment was procured, and the lies told to Plaintiff to procure

it, are for the jury to hear, and is not appropriate for a motion to dismiss.

22. Moreover, this is not an intellectual property dispute—Plaintiff is not asserting

direct rights to Defendant’s

as described in that provision of the Divorce Decree.

(Id., ¶ 14). Instead, Plaintiff is suing Defendant for statutory damages for his perjurious statements

in his financial affidavit, as provided by RSA 458, § 15-b, and for fraud, fraudulent

misrepresentation, negligent misrepresentation, conversion, and intentional and negligent

infliction of emotional distress. (Complaint, ¶¶ 64–96). Plaintiff did not waive any right to sue

for these claims. Defendant’s further implication that Plaintiff lacks standing is based on this

logically-flawed argument, and therefore fails as well. Plaintiff did in fact suffer “a legal injury

against which the law was designed to protect,” and she is pursuing the legal rights available to

her under RSA 458, § 15-b. Libertarian Party of New Hampshire v. Sec'y of State, 158 N.H. 194,

195 (2008) (quoting Asmussen v. Comm'r, N.H. Dep't of Safety, 145 N.H. 578, 587 (2000)).

23. Defendant’s related assertion that to pursue her rights in this litigation Plaintiff

should rescind the property settlement (which was incorporated into a court order deemed the final

Divorce Decree) and “tender back” her share of the marital estate, is categorically false, as

demonstrated by Defendant’s own case citations. See Mot., ¶ 15 (“A party entering into an

agreement in reliance upon a misrepresentation of a material fact has two choices ... He may

justifiably elect to rescind or disaffirm the agreement and refuse to proceed further with the

transaction, or he may elect to affirm the contract, keep its benefits, perform his obligations

thereunder, and sue for damages for misrepresentation.”) (Emphasis Added) (citing Green v.

Sumner Props., LLC, 152 N.H. 183, 185 (2005)). Plaintiff has elected to sue Defendant for

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damages, not to rescind or disaffirm. See also Legacy Global Sports, LP v. St. Pierre, No. 218-

2019-CV-198, 2020 WL 2027401, at *6 (N.H. Super. Apr. 27, 2020) (citing Coutu v. State, No.

2015-CV-488, 2017 WL 1051159, at * 3 (N.H. Super. Mar. 15, 2017); RESTATEMENT (SECOND)

OF TORTS § 530) (explaining that a party may elect to sue for fraudulent inducement in contract or

in tort; the former requires rescission and the latter does not).

24. Defendant’s Motion to Dismiss Count I should be denied.3

B. The Court Should Deny Defendant’s Motion to Dismiss Plaintiff’s Fraud

Claim (Count II).

25. As with Count I, Defendant’s Motion to Dismiss Count II attempts to re-write

Plaintiff’s fraud claim in the light most favorable to him. But that is the opposite of the standard

on a motion to dismiss. Plaintiff’s fraud claim is not based, as Defendant would have it, on the

premise that Defendant spent “his own money” without first telling his wife and getting her

approval. (Mot., Section B, Title & ¶ 24). Rather, the fraud claim is based upon Defendant’s

misuse of marital funds in anticipation of the divorce, as well as his false statements that he had

no his omissions and affirmative misrepresentations to the

Plaintiff and their joint agent (the financial advisor) regarding the Concealed Horses, and his

repeated misrepresentations to Plaintiff to induce her to enter a divorce agreement on the terms he

wanted. (Complaint, ¶¶ 11–12, 32–35, 52, 59–61). It is that egregious conduct that constitutes

fraud.

3 Defendant’s 55-page Answer, filed simultaneously with his Motion to Dismiss,

states without elaboration that Defendant “seeks to strike Plaintiff’s jury claim on Count I.”

(Answer at 1). Plaintiff’s claim, which sounds in fraud and perjury, must be tried before a jury.

However, if Defendant wishes to pursue this argument, Plaintiff requests an opportunity to respond

through motion practice. See N.H. Sup. Ct. R. 7(g) (requiring separate motions for distinct relief).

09821-00001/12305791.1 11

26. In a classic example of erecting a strawman to then knock down, Defendant

repeatedly proclaims that New Hampshire is not a community property state. Of course, no one—

least of all this Plaintiff—ever said it was. Nor does Plaintiff suggest that either she or Defendant

was required to pre-clear every expenditure they made with one another—another of Defendant’s

fictional strawmen. The claim is simply that Defendant Dan Brown committed fraud, meaning he

“made a representation with knowledge of its falsity or with conscious indifference to its truth,”

Snierson v. Scruton, 145 N.H. 73, 77 (2000) (citing Patch v. Arsenault, 139 N.H. 313, 319 (1995)).

As Count II of the Complaint alleges, Dan Brown knowingly and intentionally misled Blythe

Brown by failing to disclose assets, money, and present and future works known to him.

(Complaint, ¶¶ 12, 32–35, 41–43, 52, 59–61). Plaintiff relied on Defendant’s statements, as she

had the right to do, and she now seeks to recover damages. It’s that simple. And “intentional

dissipation” of assets prior to divorce is “no more than a fraud on marital rights.” In re Brownell,

163 N.H. at 600 (quoting Sharp v. Sharp, 473 A.2d 499, 505 (1984)).

27. In situations such as the one at bar, “courts treat ‘the dissipated assets ... as if they

were existing marital property,’ and ‘then [either] constructively award[ ] [them] to the dissipating

spouse as part of that spouse’s share of the marital estate,’ or, if insufficient assets remain to

compensate the innocent spouse, ‘order the dissipating spouse “to pay a monetary award.’” In re

Brownell, 163 N.H. at 600–01 (Alterations in original) (quoting 2 B. TURNER, EQUITABLE

DISTRIBUTION OF PROPERTY § 6:105, at 553–54 (3d ed. 2005)). Defendant cannot shield himself

from liability for secretly funneling assets to his mistress JP shortly prior to and in anticipation of

the Browns’ divorce, including during the very time period Defendant himself (albeit falsely)

claims his marriage to Plaintiff was purportedly “in name only.” (Answer at 3, 4, ¶ 13); see In re

Brownell, 163 N.H. at 600 (“[I]t would be contrary to legislative intent to ‘permit one spouse to

09821-00001/12305791.1 12

squander marital property and render it impossible to make an equitable award of property.’”)

(quoting Sharp, 473 A.2d at 505). Defendant’s argument that he did not have a duty to Plaintiff

and thus cannot be liable for fraud by omission therefore fails, particularly in light of New

Hampshire case law regarding liability for dissipation of assets.

28. The bedrock foundation in New Hampshire upon which the principle of an

“equitable” distribution rests is that both spouses have a duty to be honest and truthful and to fully

disclose their assets during the divorce when the equitable distribution of the marital estate is at

issue. Shafmaster v. Shafmaster, 138 N.H. 460, 466–67 (1994) (discussing spouses’ continuing

duty to provide updated and full financial information to each other when negotiating a property

settlement during divorce); In Matter of McMaster, No. 2008-0250, 2008 WL 11258760 (N.H.

Dec. 23, 2008) (same); see also In re Rohdenburg, 149 N.H. 276, 278 (2003) (“The duty of full

disclosure is mandatory and cannot be waived by either of the parties or by the court.”).

29. Defendant next argues that dismissal of Plaintiff’s fraud claim is somehow justified

because any financial misconduct was purportedly insignificant and immaterial in light of the

Parties’ overall wealth. Even if that were true (which it is not), then this is tantamount to saying

that a “little fraud” is okay (which it is not). Notably, Defendant cites no case authority, and none

exists. Moreover, on a motion to dismiss, it is not for the Defendant to decide that he will show

the damages are something other than the millions of dollars that are claimed. In any event,

Defendant’s Answer admits that he had several projects in the works, that he secretly purchased at

least two prize Friesian horses, and that he made various payments to JP to refurbish her home and

purchase vehicles. (Answer, ¶¶ 42–48). He never disclosed these facts to Plaintiff and does not

claim that he did. His failure to include them on his financial affidavit, coupled with Plaintiff’s

reliance on his representations and his word, makes out a classic case of fraud. Defendant’s

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contention boils down to the notion that he could outright lie to the Judge and Plaintiff in the

divorce court without penalty because even millions is purportedly not a material amount in his

ethereal world of wealth and privilege. That is a perilous suggestion that should be summarily

rejected by this Court.

30. Additionally, in her Complaint, Plaintiff refers to wire transfers and assets as

examples of Defendant’s dissipation of assets, (Complaint, ¶¶ 45–49), but the Complaint is not

limited only to those items. Rather, Plaintiff alleges that Defendant removed and hid substantial

funds from the Parties’ assets, using various methods, accounts, and agents, and that he concealed

two unique, irreplaceable Friesian horses, worth hundreds of thousands of dollars. (Complaint, ¶¶

1, 13, 41, 46). The full scope and extent of Defendant’s financial misconduct is a question of fact,

to which Plaintiff is entitled to discovery and a trial. Now is not the time on a motion to dismiss

to consider whether these omissions and misrepresentations were material, which is a question of

fact. Tessier v. Rockefeller, 162 N.H. 324, 333–34 (2011) (quoting RESTATEMENT (SECOND) OF

TORTS § 537, 80) (Alteration in Original) (“Whether a reasonable person would have regarded the

fact misrepresented to be important in determining her course of action is a question for the jury,

unless the court determines that ‘the fact misrepresented is so obviously unimportant that the jury

could not reasonably find that a reasonable [person] would have been influenced by it.’”). Notably,

the case Defendant cites in support of his “immateriality” argument involved undisclosed eBay

and PayPal accounts, admittedly containing less than $1,000—hardly worthy precedent here. See

Matter of Husband, No. 2016-0621, 2017 N.H. LEXIS 246, at *4, 2017 WL 5895181, at *2 (N.H.

Nov. 30, 2017).

31. Defendant does not move to dismiss Count II insofar as it relates to the Concealed

Horses, but he does reincorporate his inapplicable arguments regarding his projects. For the

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reasons stated in Section (II)(A), supra, ¶¶ 20–22, Defendant’s Motion should be denied on that

ground as well.

C. The Court Should Deny Defendant’s Motion to Dismiss Plaintiff’s Fraudulent

Misrepresentation Claim (Count III).

32. As with Counts I and II, Defendant calls again on his trusty strawman, claiming

that he had a right to spend his own money any way he wanted. (Mot. at 13). But Defendant’s

persistent attempts to recast Plaintiff’s allegations of fraudulent misrepresentation fail for the

reasons already articulated in Sections (II)(A)–(B), supra, and Defendant’s Motion to Dismiss on

this ground should be denied. See supra, ¶¶ 16–19, 25–26 (explaining that Plaintiff’s claims are

not premised on the notion that Defendant had to pre-clear expenditures with Plaintiff); ¶¶ 27–28

(establishing that Defendant did owe a duty to Plaintiff); ¶¶ 29–30 (describing why Defendant’s

materiality argument fails); ¶¶ 20–22 (explaining that the intellectual property transfer decree does

not shield Defendant from liability).

33. Yet, there is more. Plaintiff’s fraudulent misrepresentation claim is also premised

on Defendant’s misrepresentations to Plaintiff about the state of their marriage and assets, their

future friendship, his plans to retire, and the need for a quick, quiet, and amicable divorce—all

without any mention of the fact that Defendant was leading a secret double life. He made these

serial misrepresentations with the intent that Plaintiff would rely on them and Defendant would

get the divorce terms he wanted, no questions asked. And it worked: Plaintiff reasonably did rely

on his representations to her detriment. These allegations, spelled out in black and white in the

Complaint, (Complaint, ¶¶ 11–12, 32–34, 59–61, 75–79), stand ignored by Defendant’s Motion.

Accordingly, Defendant’s Motion to Dismiss Count III also should be denied. See Attard v. Benoit,

No. 06-CV-355-PB, 2007 WL 4380065, at *5 (D.N.H. Dec. 12, 2007) (citing Alternative Sys.

Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 30 n.5 (1st Cir. 2004)) (“The elements of fraudulent

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misrepresentation in New Hampshire require … that: (1) the defendant misrepresented a material

fact to the plaintiff, (2) with knowledge of its falsity, (3) with the fraudulent intent that plaintiff

would rely upon it, and that (4) plaintiff justifiably relied on the misrepresentation without

knowledge of its falsity.”).

D. The Court Should Deny Defendant’s Motion to Dismiss Plaintiff’s Negligent

Misrepresentation Claim (Count IV).

34. Defendant’s Motion with respect to Count IV, alleging negligent misrepresentation,

incorporates several of the invalid arguments addressed above. For the same reasons that

Defendant’s Motion fails with respect to Counts I through III, so too does it fail with respect to

Count IV. See supra, ¶¶ 19–19, 25–26 (explaining that Plaintiff’s claims are not premised on the

idea that Defendant had to obtain Plaintiff’s approval to spend money); ¶¶ 27–28 (establishing that

Defendant did owe a duty to Plaintiff); ¶¶ 29–30 (describing why Defendant’s materiality

argument fails); ¶¶ 20–22 (explaining that the intellectual property transfer does not shield

Defendant from liability).

35. Defendant additionally argues that Plaintiff’s negligent misrepresentation claim

should be dismissed because “with regard to the financial disclosures, Plaintiff’s own conduct

during the asset allocation process is [] a superseding intervening event.” (Mot., ¶ 33). That

“conduct,” it appears, is that the parties employed a joint financial advisor, (Id.), the same financial

advisor who Defendant admits he deceived in order to access many hundreds of thousands of

dollars. (Answer, ¶¶ 44, 47).

36. Defendant would put the shoe on the wrong foot to argue that Plaintiff was under a

duty to undertake an independent investigation of whether Defendant’s sworn financial affidavit

was truthful. The responsibility for lying is on the liar, not the person lied to. See In Matter of

McMaster, 2008 WL 11258760, at *2 (“That the petitioner failed to conduct discovery or further

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investigate the respondent's sworn representations is not an absolute bar to her claim of reliance.”);

Shafmaster, 138 N.H. at 467 (finding that plaintiff “did not have a duty to conduct discovery or

further investigate the defendant's representations” on his financial statements). Plaintiff could

have gone to Holland to attempt to discover at least some of Defendant’s perfidy, but without

having the information about Defendant’s conduct that Defendant knew but hid, there was no

reason for her to do so. In any event, reliance is a fact issue not susceptible to a decision on a

motion to dismiss. Mandiram, 2008 WL 11258709, at *3.

37. The Complaint makes clear that part of Defendant’s deception was lulling his wife

into taking his word for it and forgoing her own forensic review of his assets. (Complaint, ¶¶ 11–

12, 33). The Motion may say that this is a “superseding cause,” but New Hampshire law is to the

contrary. Even assuming Plaintiff’s decision to forgo due diligence of the estate could be a

superseding cause (which it clearly cannot be, as demonstrated by the aforementioned case law),

an intervening cause can only relieve a defendant of liability if the intervention was not probable

or foreseeable. Marcotte v. Timberlane/Hampstead Sch. Dist., 143 N.H. 331, 348 (1999). Here,

Defendant himself, by lying, induced the “intervening cause” that he now improperly attempts to

rely on.

E. The Court Should Deny Defendant’s Motion to Dismiss Plaintiff’s Conversion

Claim (Count V).

38. Defendant’s Motion to Dismiss Plaintiff’s conversion claim (Count V) also rests

on a defective re-write of Plaintiff’s Complaint. As already explained, Plaintiff’s claims are not

premised on the notion that Defendant could not spend money during the marriage or had to seek

“pre-approval” from Plaintiff for every expenditure. Rather, Plaintiff’s conversion claim is based

on the fact that Defendant dissipated the marital estate prior to the divorce and concealed assets

09821-00001/12305791.1 17

which Plaintiff had a right to claim during the divorce, including the Concealed Horses.

(Complaint, ¶¶ 88–89, 52).

39. This claim is not subject to dismissal on the basis that Plaintiff did not hold

exclusive title to the assets at issue. The Browns’ marital estate was subject to equitable division

under New Hampshire law at the time of the divorce. RSA 458, §16-a provides that the marital

estate “shall include all tangible and intangible property and assets, real or personal, belonging to

either or both parties, whether title to the property is held in the name of either or both parties.”

(Emphasis Added). In light of this clear statutory language that title is irrelevant in the marital

asset context, Defendant’s focus on exclusive title is misplaced. Plaintiff did have an interest in

property or assets held by Defendant (or fraudulently conveyed) at the time of the divorce, and she

alleges that Defendant, in bad faith, substantially interfered with her right and ability to control

such assets.

40. Nonetheless, Defendant heavily relies on the non-binding case of Marcucci v.

Hardy, 65 F.3d. 986 (1st Cir. 1995) for the proposition that the pleading party purportedly must

have exclusive title to the “funds” at issue to sustain a conversion claim. But the conversion claim

in Marcucci was not resolved at the motion to dismiss stage—the claim was dismissed after a

bench trial. Id. at 987. And Marcucci was a suit brought by a father against his daughter for her

use of funds held in joint accounts. Nowhere in the opinion did the First Circuit—applying some

combination of New Hampshire, Connecticut, and Massachusetts law—state or imply that the

issue of exclusive title was dispositive to its decision to affirm dismissal of the conversion claim.

Instead, the Court stated that “[t]he district court rejected the all-or-nothing positions advanced by

both parties—that each held exclusive title to the accounts notwithstanding their joint status.” Id.

at 991. The focus of the case was not about exclusive title, but rather donative intent and whether

09821-00001/12305791.1 18

the plaintiff had established ownership of the funds in the joint account or that any portion of the

joint accounts was not intended as a gift to his daughter. Id. at 991–92. Additionally, the Court in

Marcucci found that substantial amounts from the joint accounts were expended by the defendant

to care for the plaintiff. Accordingly, plaintiff’s damages “could only have been arrived at through

conjecture” and the Court concluded that the conversion claim was properly dismissed. Id. at 992.

41. This suit is entirely different. Here there is no issue of donative intent muddying

Plaintiff’s conversion claim or frustrating Plaintiff’s ability to prove damages. Additionally, here,

Plaintiff brings her conversion claim against the backdrop of RSA 458, §16-a, which makes the

issue of title irrelevant and further supports her right to an equitable portion of the assets at issue

as part of the marital estate at the time of divorce.4

F. The Court Should Deny Defendant’s Motion to Dismiss Plaintiff’s Claim for

Intentional Infliction of Emotional Distress (Count VI).

42. Defendant yet again adopts an inaccurate and constricted view of Plaintiff’s claim

with respect to intentional infliction of emotional distress (“IIED”) (Count VI). Defendant moves

to dismiss this count—citing only case law from other jurisdictions—on the basis that an affair

alone cannot constitute IIED. But Plaintiff’s claim is not based solely on Defendant’s admitted

six-year-long affair with Plaintiff’s horse trainer. Plaintiff states a claim for IIED based on the

fact that Defendant “subjected Blythe Brown to degradation and humiliation by having several

sexual affairs with numerous women during the past several years of their marriage, without Blythe

4 Plaintiff’s conversion claim also relates to Defendant’s dissipation of assets prior to the

divorce, as detailed above. See Section II(B). Had Plaintiff known about Defendant’s wasting of

the marital estate, including the significant funds he transferred to JP over a period of several

years—including during a time period he (falsely) claims his marriage to Plaintiff was “in name

only”—she would have asserted her rights to the value of those wasted assets. But she was never

given the facts or that opportunity. And had Plaintiff known about Defendant’s purchases of the

Concealed Horse, she would have sought ownership of the horses themselves. In this additional

sense, Defendant substantially interfered with Plaintiff’s property.

09821-00001/12305791.1 19

Brown’s knowledge,” “in secret pillaged the Browns’ marital assets to use for himself and for his

mistresses,” and “deceived and lied to Blythe Brown to lure her into agreeing to an asset and

property settlement far below that to which she would otherwise be entitled and on terms Dan

wanted favorable to him.” (Complaint, ¶ 92).

43. Because Plaintiff’s IIED claim also rests on Defendant’s fraud, misrepresentations,

and false statements in his financial affidavit, the cases cited by Defendant are distinguishable and

inapposite. See e.g., Quinn v. Walsh, 49 Mass. App. Ct. 696, 709 (2000) (involving one openly-

conducted affair and no financial misconduct or deception); Bowden v. Agnew, No. 1:12CV1237,

2013 WL 3545507, at *1 (M.D.N.C. July 11, 2013) (involving IIED claim against spouse’s lover

for affair only) (both cases cited in Mot., ¶ 39).

44. Furthermore, in Norton v. Hoyt, cited repeatedly in Defendant’s Motion, the District

Court dismissed the IIED claim at the summary judgment stage, not on a motion to dismiss—after

allowing the parties discovery and engaging in a fact-intensive analysis. 278 F. Supp. 2d 214, 220-

21 (D.R.I. 2003), aff'd sub nom. Norton v. McOsker, 407 F.3d 501 (1st Cir. 2005) (“there is no

universal litmus test by which to identify extreme and outrageous behavior, the determination is a

fact-specific one”).

45. In recognition of the factual nature of IIED claims, New Hampshire courts have

typically allowed them to proceed, refusing to dismiss claims based on far milder conduct than

that alleged by Plaintiff. See e.g., Censabella v. Town of Weare, No. 16-CV-490-AJ, 2017 WL

3996173, at *4 (D.N.H. Sept. 8, 2017) (denying motion to dismiss a IIED claim against co-worker

who glared at plaintiff and said plaintiff was a “a shitty cop who did not know what she was doing,”

and holding that plaintiff “minimally pleaded IIED”). Here, Plaintiff has done far more than

09821-00001/12305791.1 20

“minimally plead[]” a claim of IIED, and Defendant’s Motion to Dismiss Count VI should be

denied. Id.

46. Defendant’s next assertion that Plaintiff failed to allege that Defendant acted

intentionally is simply incorrect. To the contrary, paragraph 91 of the Complaint includes the word

“intentionally.” Defendant may deny that he intentionally or recklessly caused emotional distress,

but that is a question of fact, and not a determination to be made at the motion to dismiss stage.

Mandiram, 2008 WL 11258709, at *3.

47. Finally, like his attempt to use the intellectual property release as grounds to avoid

liability under Counts I through III, Defendant argues that he is somehow immune from Plaintiff’s

emotional distress claims by reason of a purported release in the Divorce Decree. Defendant

cannot use a release in an agreement to dismiss claims when the agreement as here was procured

by his own deceit and fraud. As is alleged in the Complaint, at the time of the Divorce Decree,

Plaintiff had not yet learned of Defendant’s tortious conduct, nor had she suffered her emotional

distress. See Bowen v. Ditech Fin. LLC, No. 2:16-CV-00195-JAW, 2017 WL 4183081, at *16 (D.

Me. Sept. 20, 2017) (distinguishing pre-release conduct from post-release conduct and explaining

that “[e]ven if [defendant] were correct in its contention that some [plaintiff]’s claims are

completely predicated upon pre-settlement conduct, there are too many intertwined factual issues ...

for the Court to find so as a matter of law.”).

09821-00001/12305791.1 21

G. The Court Should Deny Defendant’s Motion to Dismiss Plaintiff’s Claim for

Negligent Infliction of Emotional Distress (Count VII).

48. Lastly, Defendant moves to dismiss Plaintiff’s claim for negligent infliction of

emotional distress (“NIED”) (Count VII), again arguing, incorrectly, that Plaintiff’s claim rests

only on Defendant’s affair, and that he did not owe a duty to Plaintiff to refrain from “having an

affair or from spending his own money without [Plaintiff’s] approval.” (Mot., ¶ 45). But this is

yet another gross mischaracterization of Plaintiff’s lawsuit. As with the IIED claim, Plaintiff’s

NIED claim rests on more than Defendant’s infidelity—including Defendant’s fraud and

misrepresentations, see Complaint, ¶ 94–95 (incorporating allegations in previous paragraphs with

respect to NIED claim)—and it is not based on Defendant “spending his own money.” (Mot., ¶

45). Moreover, for the reasons articulated in Section II(B), Defendant did have a duty to be truthful

to Plaintiff about the Parties’ finances and assets at the time of their divorce.

49. Because Plaintiff’s NIED claim is adequately pled—and not as Defendant recast

his re-write of the allegations—it is not susceptible to dismissal. In Tessier v. Rockefeller, for

example, the Supreme Court of New Hampshire reversed the trial court’s decision to dismiss a

plaintiff’s NIED claim. The Supreme Court held that plaintiff’s NIED claim rested on her

fraudulent misrepresentation claim, and that, taken as true, plaintiff alleged facts sufficient to

support her claim. The same is true here. Tessier, 162 N.H. at 342 (“The alleged conduct of the

defendants that supports a claim for fraudulent misrepresentation also supports a claim for

negligent infliction of emotional distress. It could reasonably be found that it was foreseeable that

by making fraudulent misrepresentations … with the intention of causing the plaintiff to relinquish

her property, the plaintiff would suffer emotional harm as a result.”).

50. Finally, for the reasons already articulated in Section II(F), the release of claims in

the Divorce Decree does not preclude liability here. And, as explained in Section II(D),

09821-00001/12305791.1 22

Defendant’s argument that Plaintiff’s conduct with respect to the joint financial advisor somehow

constituted a “superseding intervening cause” of her own distress must fail because it is contrary

to established New Hampshire law. In Matter of McMaster, 2008 WL 11258760, at *2; Shafmaster,

138 N.H. at 467.

III. CONCLUSION

For the reasons above, Defendant’s Motion to Dismiss Plaintiff’s Complaint should be

denied in its entirety.

HEARING REQUESTED

Pursuant to N.H. Superior Court Rule 13(b), Plaintiff respectfully requests oral argument

on her Objection to Defendant’s Motion to Dismiss. In light of the scope and complexity of the

issues involved, Plaintiff believes that oral argument will assist the Court in considering and

determining the pending issues before it.

09821-00001/12305791.1 23

Respectfully submitted,

Blythe Brown

By her attorneys,

By her attorneys,

Dated: August 28, 2020

Counsel for Plaintiff Blythe Brown

/s/ Harvey J. Wolkoff

Harvey J. Wolkoff*

Aliki Sofis*

Kathleen Marini*

QUINN EMANUEL URQUHART &

SULLIVAN, LLP

111 Huntington Avenue, Suite 520

Boston, MA 02199

Tel: (617) 712-7100

harveywolkoff@quinnemanuel.com

alikisofis@quinnemanuel.com

kathleenmarini@quinnemanuel.com

* Admitted pro hac vice

/s/ Joseph D. Steinfield

Joseph D. Steinfield (NH Bar No. 18721)

130 Court Street

Keene, NH 03431

Tel: (617) 285-3937

joe@joesteinfield.com

09821-00001/12305791.1 24

Certificate of Service

I hereby certify that on this date I am sending a copy of this document as required by the

court. I am electronically sending this document through the court’s electronic filing system to all

attorneys and to all other parties who have entered electronic service contacts (email addresses) in

this case. I am also sending the document by email and regular mail to Joan A. Lukey, Choate Hall

& Stewart LLP, Two International Place, Boston MA 02110.

/s/ Joseph D. Steinfield

Joseph D. Steinfield, Bar No. 18721

130 Court Street

Keene, NH 03431

(617) 285-3937

joe@joesteinfield.com