

In May 1999, James Fox began to physically abuse Plaintiff by chasing her into a bedroom closet, pinning her against the wall, screaming loudly in her ear that she is a stupid idiot, and then biting her finger so hard that her finger showed bite and bruise marks for two weeks. Over time the physical abuse escalated. For example, on the evening of December 29, 1999, James Fox threw Plaintiff, then four months pregnant, on the bed, violently grabbed her leg with both hands in his expressed attempt to break it, and hit Plaintiff in the face causing her lip to bleed when she screamed in pain about her leg.



On three separate occasions, once in January 2000, once in March 2000, and once in April 2000, Plaintiff sought Spivack’s counseling and advice with regard to the violent physical and mental abuse that she was suffering at the hands of James Fox. Plaintiff had occasion to be in the presence of Spivack during these times because Plaintiff and James Fox attended the monthly social event that Spivack hosted for EI clients and married couples who met through EI. For example, during the January 2000 social, Plaintiff told Spivack about the evening of December 29, 1999; specifically that James Fox had beaten her and terrorized her while pregnant, leaving her with a busted lip and bruises, and that she was so afraid of him beating her again that once he left the apartment for a while, she fled on foot and spent the entire night in a nearby Wal-Mart. At the April 2000 social, Plaintiff specifically told Spivack that James Fox was becoming increasingly abusive and had chased her with a broken piece of glass, put it on her neck, and then told her he hated her, causing her to be “really scared.” (J.A. 1126).



In response to Plaintiff’s repeated reports of abuse and request for advice, Spivack always minimized the abuse Plaintiff suffered, advising her that it was nothing to worry about. With respect to the December 29th beating specifically, Spivack advised Plaintiff that “‘All Americans--all American men are crazy.’” (J.A. 1123). Spivack continued: “‘Maybe you just listen to him, and do what he says.’” Id. Spivack repeatedly advised Plaintiff that she had only two options, work things out with James Fox or be deported back to the Ukraine. Based upon this advice, Plaintiff remained in the marriage and awaited the birth of her daughter.

On July 6, 2000, approximately three weeks after Plaintiff gave birth to her daughter Sophia, James Fox subjected Plaintiff to a final violent episode. Specifically, James Fox physically and verbally abused Plaintiff for approximately two hours, including threatening to kill her while holding a gun to her head. Shortly thereafter, Plaintiff called an ambulance because of severe chest pain. The ambulance took Plaintiff to the local hospital where she was treated by Air Force Lt. Col. Marilyn Perry, M.D. Plaintiff had numerous physical injuries including contusions and swelling on her face; hand marks on her arms (indicating that she was violently grabbed and/or shaken); a human bite to her hand; and contusions on her chest. Dr. Perry -- board certified with substantial experience with domestic abuse -- also testified that it was clear

to her that Plaintiff had been terrorized and was a victim of domestic abuse . . .



The record is undisputed that Spivack knew about the battered spouse waiver during the times that Plaintiff had confided in her about the physical and mental abuse that James Fox inflicted upon her. The record is also undisputed that Spivack, nor any other agent or employee of EI, ever informed Plaintiff about the battered spouse waiver. Notably, at all times relevant to this case, EI was governed by the Mail Order Bride Act (MOBA), 8 U.S.C. § 1375. As part of this 1996 legislation, Congress found that there was a heightened risk of domestic abuse in relationships formed by international matchmaking agencies and that women who used such services are “unaware or ignorant of United States immigration law.” 8 U.S.C. § 1375(a). MOBA required that “[e]ach international matchmaking organization doing business in the United States shall disseminate to recruits, upon recruitment, such . . . information as the [INS] deems appropriate, . . . including information regarding . . . the battered spouse waiver.”4 8 U.S.C. § 1375(b)(1) (emphasis added).

Finally, the record is undisputed that EI’s website featured Plaintiff’s name and likeness throughout the relevant time period, including through trial. Defendants used Plaintiff’s name and likeness to portray her as a happy and satisfied customer even after Defendants had actual knowledge that James Fox physically and mentally abused Plaintiff and that Plaintiff was decidedly not a happy customer. Indeed, Defendants placed a picture of Plaintiff taken when she was either six or seven months pregnant (taken in March or April 2000) on the EI website. It is undisputed that EI never obtained written consent as required by the relevant Virginia statute to place any of these pictures on its website.