Case 1:19-cv-10203-IT Document 84 Filed 07/01/20 Page 1 of 13

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS
SONYA LARSON, )
Plaintiff )
)
v. ) C.A. No.: 1:19-CV-10203-IT
)
DAWN DORLAND PERRY, )
COHEN BUSINESS LAW GROUP, PC and )
JEFFREY A. COHEN, ESQUIRE, )
Defendants )

DEFENDANTS COHEN BUSINESS LAW GROUP, PC AND JEFFREY A. COHEN,

ESQ.’S MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR
JUDGMENT ON THE PLEADINGS

Defendants Cohen Business Law Group, PC, and Jeffrey A. Cohen, Esq. (“Attorney

Cohen”) (collectively, the “Firm”) move for judgment on the pleadings, pursuant to Fed. R. Civ.

P. 12(c), on Counts III, IV, V, and VI of the Plaintiff, Sonya Larson’s (“Larson”) Amended

Complaint.

As grounds, the Firm states that Larson has failed to show in her Complaint that she is

entitled to relief on Counts III and IV for Interference with the BBF contract. This Court has

already determined that the BBF contract was not breached. Furthermore, Larson’s claims against

the Firm for violation of M.G.L. c. 93A (Counts V and VI) fail to state a plausible claim, as a

matter of law. In order for a non-client to successfully assert a claim against an attorney under

G.L. c. 93A, the attorney must have been acting in a business context vis-à-vis the plaintiff. Larson

has made no such allegation. The facts as alleged pertain solely to the Firm’s assertion of a legal

position on behalf of a client, and do not involve a marketplace transaction. As such, Larson’s

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allegations are insufficient to state a claim for violation of M.G.L. c. 93A.

I. FACTUAL BACKGROUND1

In 2015, Defendant Dawn Dorland Perry (“Dorland”) donated one of her kidneys to an

unknown recipient. Amended Complaint, ¶ 8. That July, she wrote a letter addressed to her

recipient (“Factual Letter”) to introduce herself, explain why she donated her kidney, express an

interest in learning more about her recipient, and propose meeting her recipient. Id. at ¶ 9. Soon

after, Dorland posted the Factual Letter to a private Facebook group, to which she and Larson were

both members. Id. at ¶¶ 9-10.

A. Larson’s Short Story

According to the Complaint, Larson saw the Factual Letter on the private Facebook group

and was inspired; she recorded her thoughts and ideas from the Factual Letter and some other

letters from organ donors. Id. at ¶¶ 17, 20. In fact, Larson was beginning to write a Short Story2

about “an alcoholic, working class Chinese-American woman living in Boston with her husband,

who receives a kidney donation from a wealthy white woman.” Id. at ¶ 17. Notably, the Short

Story includes a letter sent by the donor character to her kidney recipient (“Fictional Letter”). Id.

at ¶ 19. The Short Story revolves around their eventual meeting following the Fictional Letter. Id.

at ¶ 15.

In December 2015, Audible, Inc. (“Audible”) accepted the Short Story for publication as

an audio story. Id. at ¶ 26. Larson then began changing the content of the Fictional Letter to “avoid

1
The Firm, solely for the purposes of this motion, assumes the truth of the well-pleaded factual allegations in the
Complaint. The Firm reserves the right to dispute those factual allegations should this case survive dispositive motions
by any party.
2
The Complaint refers to the short story as “The Kindest,” the “Short Story,” or “The Work”. Id. at ¶ 14. For
purposes of clarity, this motion will refer to Larson’s story that she submitted to Audible and ASF as the “Short
Story” and the later version she submitted to the BBF as “The Kindest.”

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any resemblance between Larson’s Fictional Letter and Dorland’s Factual Letter.” Id. at ¶ 27.

Before Larson finished her revisions, however, Audible uploaded an earlier version of the Short

Story in downloadable and print-on-demand CD format. Id. at ¶ 28. Audible would later publish

Larson’s revised Short Story. Id.

Dorland learned of the Short Story in June of 2016 – one month before Audible published

the revised Short Story – after Larson read a preliminary draft at a Boston bookstore. Id. at ¶ 21.

One of Dorland’s friends was in attendance. Id. She contacted Dorland afterwards because the plot

– anonymous kidney donor contacting their recipient – reminded her of Dorland.3 Id. Dorland

contacted Larson about Short Story and, after she read a copy, became upset with Larson because

Larson’s Fictional Letter resembled her Factual Letter. Id. On August 3, 2016, Audible published

Larson’s revised Short Story. Id. at ¶ 28. American Short Fiction (“ASF”) also published an earlier

version of the Short Story in its August 2017 literary magazine and featured it online in May 2018.

Id. at ¶ 29. Audible and ASF respectively paid Larson $125 and $300 to publish the Short Story.

Id. at ¶¶ 28-29.

B. Larson Submits The Kindest to the Boston Book Festival

Larson eventually submitted The Kindest to the Boston Book Festival (“BBF”). In May

2018, the BBF selected The Kindest as its central literary work to feature from August to October

2018 as its One City/One Story selection. Id. at ¶ 32. Larson entered into a contract with the BBF,

granting the BBF a license to publish [The Kindest] online in multiple languages, and to print and

distribute 30,000 free copies of The Kindest throughout the Greater Boston Area.” Id. at ¶ 66; see

3
Dorland’s friend posted, “Sonya [Larson] read a cool story about giving out a kidney, you came to mind, and I
wondered if you were the source of the inspiration.” Id. at ¶ 21 (alteration in original).

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Exhibit A, BBF Contract.4 Dorland, after learning of the selection, contacted ASF, the BBF,

Larson’s employer, and other writing organizations to complain that Larson’s Work plagiarized

the Factual Letter. Amended Complaint at ¶ 53. The BBF expressed concern to Larson that the

Fictional Letter resembled the Factual Letter. Id. at ¶ 39. Larson then agreed to modify her

Fictional Letter in The Kindest. Id. at ¶ 40. This revision to The Kindest was one of many that

Larson made for the BBF. Id. In fact, Larson also revised the “story’s location and certain objects,

details, dialogue, gestures, word choices[,] and the ending.” Id.

On June 10, 2018, Dorland obtained a copyright for the Factual Letter.5 Id. at ¶ 12. That

same month, Larson retained Attorney James A. Gregorio to “deal with the hornet’s nest that

Dorland was stirring up.” Id. at ¶ 42. Gregorio requested ASF – a non-party – to forward his contact

information to Dorland or her attorney to discuss the Work. Id.

C. Involvement of the Firm

On July 3, 2018, the Firm wrote a letter to the BBF stating that Larson’s Short Story

contained the Factual Letter “in whole or in part.” Id. at ¶ 43. The Firm’s letter states that “any

decision by the BBF to publish Larson’s Short Story would infringe Dorland’s rights” and requests

that the BBF cease and desist from further printing, copying, distributing, or undertaking any other

activities related to Larson’s Short Story. Exhibit B, Cease and Desist Letter.6 If not, the Firm’s

letter states that the BBF would risk incurring damages under the Copyright Act. Amended

4
Under Fed. R. Civ. P. 10, a copy of a written instrument that is an exhibit to a pleading is a part of the pleading for
all purposes. This Court has already explicitly stated in its March 27, 2020 order that the BBF contract is
incorporated into the pleadings.
5
The Factual Letter’s copyright title is “Dorland kidney chain final recipient letter July 2, 2015” and its registration
number is TXu 2-101-420. Id. at ¶ 14.
6
Under Fed. R. Civ. P. 10, a copy of a written instrument that is an exhibit to a pleading is a part of the pleading for
all purposes. Given that the plaintiff has explicitly incorporated the Cease and Desist letter in the Complaint and
attached it as an exhibit, the Court may consider it when deciding this motion for judgment on the pleadings.

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Complaint, ¶ 74. The BBF ultimately rescinded its selection of The Kindest as its One City/One

Story selection. Id. at ¶ 50.

II. STANDARD OF REVIEW

Fed. R. Civ. P. 12(c) provides that any party may move for judgment on the pleadings after

the pleadings are closed and within such time as not to delay the trial. The court must accept as

true all well-pleaded facts and draw reasonable inferences in favor of the plaintiff. Cooperman v.

Individual, Inc., 171 F.3d 43, 46 (1st Cir. 1999). A court will grant a motion for judgment on the

pleadings if the plaintiff’s well-pleaded facts do not show that the plaintiff is entitled to relief. Ruiz

Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 81 (1st Cir. 2008).

III. THIS COURT MUST DISMISS LARSON’S CLAIMS OF INTERFERENCE WITH

THE BBF CONTRACT (COUNTS III AND IV) BECAUSE THIS COURT HAS
ALREADY DECIDED THAT NO BREACH OF CONTRACT OCCURRED.

This Court must dismiss Larson’s claims of interference with the BBF Contract because it

has already decided that no breach of contract occurred. Under the law of the case doctrine, “when

a court decides upon a rule of law, that decision should continue to govern the same issues in

subsequent stages in the same case.” United States v. Wallace, 573 F.3d 82, 87–88 (1st Cir. 2009);

Remexcel Managerial Consultants, Inc. v. Arlequin, 583 F.3d 45, 53 (1st Cir. 2009). In

Massachusetts, in order for a plaintiff to have a cause of action for tortious interference of contract,

there must be a breach of that contract. See G.S. Enterprises, Inc. v. Falmouth Marine, Inc., 410

Mass. 262, 272 (1991); Pure Distributors, Inc. v. Baker, 285 F.3d 150, 155 (1st Cir. 2002).

A. This Court must follow its earlier decision and hold that the BBF did not breach
its contract.

In this Court’s March 27, 2020 Order and Memorandum, the Court held that “to show

entitlement to relief, the factual allegations in the pleadings must give rise to the legal conclusion

that […] BBF breached [its] contract with Larson.” The Court further found that “the BBF contract

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[…] only grants rights to BBF to publish and distribute the story, but it does not contain any

promise by BBF to actually include The Kindest in its One City/One Story project or to otherwise

publish the work.” This Court concluded that “because breach of contract is an essential element

of Larson’s Interference with Contract claim and the only support found in the pleadings to

undergird this accusation is the conclusory statement that […] BBF breached [its] agreement,”

Larson’s claims against Dorland for Interference with Contracts must be dismissed.

Larson’s Interference with the BBF Contract claims brought against the Firm rely on the

same contract at issue in Dorland’s Motion to Dismiss. Because this Court has already determined

that the BBF did not breach its contract with Larson, this Court must follow its earlier decision

and hold the same here. As this is an essential element of Larson’s Interference of Contract claims

against the Firm, this Court must dismiss Counts III and IV.

B. Larson’s Amended Complaint fails to allege a breach of contract by the BBF.

Even if the Court does not find that it should automatically follow its previous decision,

Larson’s counts of Interference with her BBF Contract must be dismissed because she has not

alleged any breach of contract in her Amended Complaint. Larson only alleges that she “granted

the BBF a license to publish The Kindest online in multiple languages, and to print and distribute

30,000 free copies of The Kindest throughout the Greater Boston area.” Amended Complaint, ⁋

66. Larson has not alleged that the BBF had or has an obligation to use its license, or that BBF’s

non-use of the license broke any agreement. The contract itself, incorporated in the pleadings, does

not contain any promise by BBF to actually include The Kindest in its One City/One Story project

or to otherwise publish the work. See Exhibit A.

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Larson has failed to allege an essential element of the claim, and as her claim for

interference by the Firm with the BBF contract fails as a matter of law. Accordingly, the Firm

respectfully requests that Counts III and IV of the Complaint be dismissed with prejudice.

IV. THIS COURT MUST DISMISS COUNTS V AND VI BECAUSE THE FACTS
ALLEGED BY LARSON FAIL TO SUPPORT A CAUSE OF ACTION AGAINST
AN ATTORNEY UNDER M.G.L. c. 93A.

Massachusetts General Laws c. 93A offers a broad remedy to consumers, but the

applicability of the statute is nonetheless limited to causes of actions arising in the conduct of trade

or commerce. In the Amended Complaint, Larson alleges in a conclusory fashion that the Firm’s

correspondence with the BBF constituted acts in the conduct of trade or commerce. However,

there is no allegation that the Firm was engaged in a business relationship vis-à-vis Larson or the

BBF. Massachusetts case law is clear that an attorney taking a position on behalf of his or her

client, even if legally incorrect or unfounded, is not activity within trade or commerce so as to

warrant relief under c. 93A. Even to the extent that the Amended Complaint can be interpreted to

allege that the Firm’s correspondence constituted interference with the BBF’s engagement in trade

or commerce, such allegations are unavailing where the BBF is a nonprofit charitable corporation

and was not engaging in trade or commerce in its license and contemplated publication of Larson’s

short story.

A. There is no allegation that the Firm was engaged in “trade or commerce” with
Larson.

Chapter 93A prohibits “unfair or deceptive acts or practices in the conduct of any trade or

commerce.” Peabody N.E., Inc. v. Town of Marshfield, 426 Mass. 436, 439 (1998) (quoting ch.

93A, § 2(a)). Generally, “the proper party to assert a [Chapter] 93A claim against an attorney is a

client or someone acting on a client's behalf.” Tetrault v. Mahoney, Hawkes & Goldings, 425

Mass. 456, 462 (1997); First Enterprises, Ltd. v. Cooper, 425 Mass. 344, 347–48 (1997); Baker v.

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Wilmer Cutler Pickering Hale & Dorr LLP, 91 Mass. App. Ct. 835, 850 (2017). When a non-client

asserts a Chapter 93A claim against an attorney, the acts or practices complained of must be

perpetrated in a business context for the claim to survive. See First Enterprises, 425 Mass. at 347–

48; (finding attorney did not engage in trade or commerce where attorney alleged that plaintiff had

breached its agreement to pay client); Arthur D. Little, Inc. v. E. Cambridge Sav. Bank, 35 Mass.

App. Ct. 734, 743 (1994) (dismissing 93A claim against attorney defendant where no commercial

relationship ever existed between the parties, their only contact occurred in the context of

litigation); O'Connor v. Nantucket Bank, 992 F. Supp. 2d 24, 38–39 (D. Mass. 2014) (finding no

allegation of attorney engaging in trade or commerce vis-à-vis the plaintiff where the attorney sent

a notice to vacate to the plaintiff); Akar v. Fed. Nat. Mortg. Ass'n, 843 F. Supp. 2d 154, 171 (D.

Mass. 2012) (finding trade or commerce element had not been met when the “only contact between

the parties was on opposing sides of a dispute involving the foreclosure of [Plaintiff]'s property by

[the law firm's client]”).

Here, Larson does not allege that she was ever the Firm’s client. Moreover, Larson did not

enter into a business relationship with the firm. At all times, the Firm represented Dorland, whose

interests were adversarial to Larson’s. As such, in order for her claim to survive a Rule 12

challenge, the Firm must have been engaged in “trade or commerce” with Larson. However,

Larson fails to allege any conduct of the Firm directed toward her that occurred in a business

context. The sole basis for Larson’s claims under M.G.L. c. 93A is the Firm’s sending of a letter

to the BBF, a non-party, containing allegedly false or inaccurate copyright claims. The Firm

maintains that its interpretation of copyright law set forth in the letter was correct. However, for

purposes of this motion, the accuracy or validity of those claims is irrelevant to Larson’s claim for

violation of M.G.L. c. 93A. See First Enterprises, 425 Mass. at 348. The only interactions alleged

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by Larson occurred between the Firm and the BBF in the context of a copyright dispute, in which

the Firm communicated its client’s position to a third-party. As the Supreme Judicial Court held

in First Enterprises, however, statements made in the course of litigation (and pre-litigation) to an

opposing party do not occur in trade or commerce, and cannot serve as an actionable basis for a

93A claim. Larson’s Amended Complaint fails to allege any conduct attributable to the Firm

demonstrating that the Firm acted in “trade or commerce” toward her. As a result, Larson fails to

state a plausible claim for relief under Chapter 93A, and judgment must enter in favor of the Firm

on Counts V and VI.

B. The Firm’s communication with BBF is not actionable under M.G.L. c. 93A.

To the extent that Larson alleges that the Firm’s communication with the BBF constituted

an injection into trade or commerce by making representations to a third-party, such conduct

cannot give rise to a claim under M.G.L. c. 93A where the Court’s prior ruling as to the nature and

scope of the contract between the BBF and Larson does not implicate trade or commerce.

Moreover, the Firm’s conduct did not occur in trade or commerce where the BBF is a non-profit

charitable entity and its contemplated use of Larson’s work stemmed from its charitable purpose.

1. The Court has already ruled that the BBF’s contract did not involve trade or
commerce.

As detailed above, the Court’s March 27, 2020 order determined that Larson’s Amended

Complaint fails to allege that the BBF breached its contract with Larson. Specifically, the Court

noted that the BBF contract “only grants rights to BBF to publish and distribute the story, but it

does not contain any promise by BBF to actually include The Kindest in its One City/One Story

project or to otherwise publish the work.” Based on this ruling, the Court has interpreted the BBF

contract to involve only a grant of a license to the BBF, enabling the BBF to use Larson’s story

solely at its own discretion. The contract imposes no obligation on the BBF to publish or

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disseminate Larson’s work. Further, the contract states that Larson “declined the BBF’s offer to

provide financial compensation in exchange for the rights granted by you herein.” See Exhibit A.

Based on the Court’s interpretation, the BBF contract represents one of the few examples

where a contract does not implicate trade or commerce. It was not supported by monetary

consideration. It imposed no binding obligations on either party. Instead, it simply granted the

BBF the option to use Larson’s short story in connection with an annual literary charity program.

Accordingly, in light of the Court’s interpretation of the nature and scope of the BBF contract, the

Firm’s communication with the BBF cannot be characterized as occurring within trade or

commerce.

2. The BBF’s license and potential publication of Larson’s short story was a
charitable activity and therefore not within trade or commerce.

Moreover, the Firm’s communication with the BBF did not occur in trade or commerce

where the BBF’s intended publication and distribution of Larson’s work was in furtherance of its

charitable purpose. As stated in its Articles of Organization, the BBF is an independent, non-profit

charitable corporation that promotes and disseminates literary works for free. See Exhibit C,

Boston Book Festival, Inc.’s Articles of Organization.7 While an entity’s “status as a ‘charitable’

corporation is not, in and of itself, dispositive of whether c. 93A applies,” courts look to several

factors to determine whether the challenged conduct arose in a “business context,” including “the

nature of the transaction, the character of the parties involved, and the activities engaged in by the

parties.... Other relevant factors are whether similar transactions have been undertaken in the past,

whether the transaction is motivated by business or personal reasons ... and whether the participant

7
When considering a motion for judgment on the pleadings, the Court may “supplement the facts contained in the
pleadings by considering documents fairly incorporated therein and facts susceptible to judicial notice.” R.G.
Financial Corp. v. Vergara-Nunez, 446 F.3d 178, 183 (1st Cir. 2006). The Firm hereby requests that the Court take
judicial notice of the BBF’s Articles of Organization, pursuant to Fed. R. Evid. 201.

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played an active part in the transaction.” Linkage Corp. v. Trustees of Boston University, 425

Mass. 1, 23-24 (1997), quoting Begelfer v. Najarian, 381 Mass. 177, 190-191 (1980). Courts have

declined to apply Chapter 93A to situations in which a nonprofit organization has not sought to

profit from the transaction at issue. See All Seasons Servs., Inc. v. Commissioner of Health &

Hosps. of Boston, 416 Mass. 269, 271 (1993) (statute not applicable where hospital did not seek

to profit from contract with food service company and providing food services was incidental to

hospital's primary activity); Hubert v. Melrose–Wakefield Hosp. Ass’n, 40 Mass. App. Ct. 172,

(1996) (hospital not subject to G.L. c. 93A because it was not acting in business context to generate

profit through its efforts to relocate building in order to expand onto building's prior location).

In this case, the BBF sought a license to publish and disseminate Larson’s short story for

free, in accordance with its charitable purpose of “further[ing] the cause of literature,

encourag[ing] writing, celebrat[ing] authors and the free expression of ideas, and highlight[ing]

the importance of the literary arts.” See Ex. A. As a charitable corporation, the BBF did not seek

to profit from its license to publish and distribute Larson’s work, in the manner that a for-profit

publishing corporation would. Rather, the BBF sought to distribute Larson’s work to an audience

that shared its mission and core values. Further, the BBF’s license to publish and distribute

Larson’s work contained no monetary terms, and Larson received no compensation from the BBF

in exchange for the license. Given the BBF’s charitable purpose and the nature of the subject

transaction, the BBF’s contemplated publication and use of Larson’s short story did not occur in a

business context, and by sending the Letter to the BBF, the Firm did not interfere with trade or

commerce. As such, the Firm’s letter to the BBF does not give rise to an actionable claim for

violation of M.G.L. c. 93A. The Court should therefore enter judgment on Counts V and VI in

favor of the Firm.

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V. CONCLUSION

For the reasons set forth above, Cohen Business Law Group, P.C. and Jeffrey A. Cohen, Esq.

respectfully request that this Court enter judgment on the pleadings and DISMISS Counts III, IV,

V, and IV in the Amended Complaint.

REQUEST FOR ORAL ARGUMENT

In accordance with Local Rule 7.1(d), counsel for the Defendants, Cohen Business Law

Group, P.C. and Jeffrey A. Cohen, Esquire, hereby requests a hearing for oral argument in

connection with this motion.

THE DEFENDANTS,
COHEN BUSINESS LAW GROUP, PC,
AND JEFFREY A. COHEN, ESQUIRE,
BY THEIR ATTORNEYS,

/s/ Matthew H. Greene

DATED: July 1, 2020
Mark W. Shaughnessy, Esq. (BBO# 567839)
mshaughnessy@boyleshaughnessy.com
Matthew H. Greene, Esq. (BBO# 673947)
mgreene@boyleshaughnessy.com
Boyle | Shaughnessy Law, P.C.
695 Atlantic Avenue, 11th Floor
Boston, MA 02111
Phone: (617) 451-2000
Fax: (617) 451-5775

L.R. 7.1(a)(2) CERTIFICATION

I, Matthew H. Greene, certify that I conferred with Plaintiff’s counsel pursuant to Local
Rule 7.1(a)(2), and have attempted in good faith to resolve or narrow the issue.

/s/ Matthew H. Greene

DATED: July 1, 2020
Counsel for Defendants, Cohen Business Law

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CERTIFICATE OF SERVICE
I hereby certify that this document filed through the ECF system will be sent electronically to the registered
participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as
non-registered participants on this 1st day of July, 2020.

/s/ Matthew H. Greene, Esq. (BBO# 673947)

Counsel for Defendants, Cohen Business Law Group, PC and
Jeffrey A. Cohen, Esquire

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EXHIBIT A
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EXHIBIT B
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COHEN €L

A Professional Corporation
Attorneys Los Angeles Office
Jeffrey A. Cohen 10990 Wilshire Blvd., Suite 1025
Michael S. Hanna Los Angeles, CA 90024
Telephone: (310) 469-9600
Of Counsel Facsimile: (310) 469-9610
f. Eric Kirkland
Rennet G. Kelley South bay Office
2321 Rosecrans Ave., Suite 3225
El Segundo, CA 91423
Telephone: (310) 906-1900
Facsimile: (310) 906-1901

July 3,2018

The Boston Book Festival Via Overnight Mail &

32R Essex Street, Suite 5 Email to infobostonbookfest.org
Cambridge, MA 02139

Re: Dawn Dorland Copyright Claim

Our Client: Dawn Dorland
Our file no.: 7277.00 1

SETTLEMENT COMMUNICATION FRI RULE 408; CRE §1152, 1154

To the Boston Book Festival:

Please be advised that this office is copyright counsel for Dawn Dorland with respect to
her copyrighted work “Dorland kidney chain final recipient Work July 2, 2015” (hereinafler, the
“Work”). Please direct any communications concerning this matter to this office.

We have reviewed various communications between our client and members of your staff,
Norah Piehi and Raquel Hitt, regarding the Boston Book Festival (“BBF”) decision to publish a
short story authored by Sonya Larson entitled “The Kindest” as part of the 10th annual festival, to
be featured in the festival’s One City One Story (“1C1$”) section. BBF has previously been placed
on notice by our client that this short story contains the Work in whole or in part. We are informed
that prior to the involvement of this office, our client attempted to amicably resolve this matter by
requesting that BBF include an acknowledgment of the Work in the “The Kindest”. We understand
that her proposal was flatly, if not somewhat dismissively and rudely rejected without fully
considering the rights of our client or the potential liability of BBF. By this letter we hope to
resolve this matter with you, but in the event that is not possible, you may rest assured that we will
protect our client’s rights.

BBF has already admitted infringement of the Work by Ms. Larson and potentially either
direct or contributory infringement by BBF. We do not have the benefit of having reviewed any
purported revision to “The Kindest” to determine whether any infringement remains, however, the
duplication in some instances, and striking similarity in others, between the Work and The Kindest,
is so particularly egregious that it is our opinion that any decision to publish The Kindest would
necessarily infringe our client’s rights. As such, please accept this correspondence as a formal

TRANSACTIONS AND LITIGATION

BUSINESS I CORPORATE I INTERNET & TECHNOLOGY INTELLECTUAL PROPERTY I DATA BREACH I NEW MEDIA I
 Case 1:19-cv-10203-IT Document 84-2 Filed 07/01/20 Page 3 of 3
The Boston Book Festival
July 3,2018
Page 2 of 2

demand that you cease and desist of and from any further printing, copying, distribution, or
other activities related to “The Kindest” until such time as this matter has been resolved.
Any failure to acknowledge the rights of our client or failure to cooperate with this office towards
finding an amicable resolution will require further formal action to protect our client’s rights. We
and our client remain hopeful that 33f is more reasonable than its previous response to our client
would make it seem. Do not test our resolve in this regard, nor our willingness to reach an
appropriate resolution.

In order to further evaluate this matter, we ask that you provide this office with an advance
copy of the purportedly revised “non-infringing” version of “The Kindest”. We are willing to
consider a stipulated protective order or stipulation of non-disclosure in this regard if you believe
that would be helpful, and we ask that you provide the advance copy within ten (10) days of the
date of this letter. Further, we will take your failure to provide such a copy as an admission that no
such change or that only a de minirnis change has been made, such that the revised version
continues to violate the rights of our client. As such, we would be lefi with no alternative but to
proceed accordingly to prevent intended publication and otherwise protect our client’s rights. Be
further advised that such action, if necessary, would no longer be for attribution, but will demand
the full measure of penalties for statutory copyright infringement under 17 U.S.C. § 504(c), which
as you likely are aware, could be as high as $150,000 under facts such as those presented herein
wherein BBF has admitted infringement and willfully proceeds in complete and intentional
disregard of our client’s rights despite such advance knowledge of infringement. The shortness,
and quite frankly the rudeness of your prior response to our client will not be considered favorably
by the court.

Again, the purpose of this correspondence is to confirm your admission of infringement

and likely liability as a result thereof. However, our purpose is also to genuinely provide BBF the
opportunity to correct this situation, and this office remains open to legitimate discussions in this
regard. Nothing contained herein or not contained herein should be taken as a waiver of any rights
of our client, all of which are hereby expressly reserved.

Very truly yours,

COHEN I ESS LAW UP

A

JEF R A. COHEN

JAC/
L-BBf 20180628.5(JAC)
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EXHIBIT C
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MA SOC Filing Number: 200811519630 Date: 02/26/2008 1:54 PM

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 MA SOC Filing Number: 200811519630
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9 PM

THE COMMONWEALTH OF MASSACHUSETTS

I hereby certify that, upon examination of this document, duly submitted to me, it appears

that the provisions of the General Laws relative to corporations have been complied with,

and I hereby approve said articles; and the filing fee having been paid, said articles are

deemed to have been filed with me on:

February 26, 2008 1:54 PM

WILLIAM FRANCIS GALVIN

Secretary of the Commonwealth

242577-1-0