Lawyers persuade jurors to set aside bitter battle over abortion and focus on harassment

A political uproar erupted when anti-abortion activists posed as biotechnology representatives in 2015 to infiltrate Planned Parenthood health centers and conferences and make surreptitious videos that allegedly showed the group was illegally selling fetal tissue.

The videos outraged conservatives and risked Planned Parenthood's funding. The outcry led to a spike in protests, harassment and violence against Planned Parenthood. The group struck back, enlisting pro bono aid from Arnold & Porter Kaye Scholer LLP to sue individuals and the activists' organization on claims of fraud, trespass, illegal recordings and violations of the federal Racketeer Influenced and Corrupt Organizations Act. Planned Parenthood Federation of America Inc. v. Center for Medical Progress, 3:16-cv-00236 (N.D. Cal., filed Jan. 14, 2016).

In November 2019, following a six-week trial and two days of deliberations, a federal jury in San Francisco gave Planned Parenthood a sweeping victory, finding six of the seven defendants liable, including the organization. It awarded damages and civil RICO punitive damages totaling $2.2 million.

Arnold & Porter partner Rhonda R. Trotter, who gave the opening argument and split the close with colleague Jeremy T. Kamras, said her approach was simple. "It doesn't matter how strongly one holds one's feelings about the propriety of abortion rights, you can't break the law," she told a jury comprised -- to the plaintiffs' concern -- mainly of men.

Amy L. Bomse

"We had a jury of 10 men and 2 women," emailed Amy L. Bomse, who was co-lead counsel and who switched firms last year. One of the women took ill and was not part of the deliberations. "It was not a liberal San Francisco jury, either. Their views (based on questionnaires) were diverse and some were not necessarily friendly to Planned Parenthood or legal abortion. But the evidence we presented of the defendants' fraud and intent to harm Planned Parenthood providers was overwhelming and the jury's verdict showed they got it."

The trial team, which included senior counsel Sharon D. Mayo, itself was harassed by anti-abortion spectators in the gallery. "We had folks come up to the bar with bibles open," Trotter said. "People in the hallway told us to repent as we walked a gantlet of protesters. It was the first case in my career where there were vocal protesters in the courtroom."

The most disturbing incident, she added, was when one of the Planned Parenthood physician witnesses was followed outside the courthouse by a man shooting video of her. "She tried to escape and came back to the courthouse for protection. She was clearly frightened. We made a submission to the court with a link to the video the other side posted. After that, we provided security and Judge [William H.] Orrick brought in more marshals. It was a high stress time."

The defense theme was that they were citizen journalists protected by the First Amendment.

"The problem with that is that journalists have to follow the law," Trotter said. She said she expects that will be a major theme of the defendants' expected appeal.

Bomse said one of the witnesses she examined, Dr. Mary Gatter, was a chief target of the defendants. "She testified that after the defendants published their secret video, protesters showed up at her house. Eventually she felt so unsafe she ended up selling her home and moving into a gated community." Another witness told of keeping a flack jacket in the trunk of her car while she drove her child to school and putting it on afterwards. "She didn't want the kid to see it," Trotter said. "After that, there was silence in the courtroom, even from the defendants' supporter in the audience."

-- John Roemer