Charles F. Wachendorfer Consulting Group LLC et al v. Think2Perform Exam Services Co. et al

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
CHARLES F. WACHENDORFER
CONSULTING GROUP LLC (d/b/a
DECISION REFLEX CONSULTING) and
CHARLES WACHENDORFER,
Plaintiffs,
v.
THINK2PERFORM EXAM SERVICES
CO. (f/k/a THINK2PERFORM, INC.);
DOUG LENNICK; and
THINK2PERFORM, INC.,
Defendants.
Case No. 25‐CV‐1298 (PJS/EMB)
ORDER
Jessie L. Pellant, Timothy M. Sullivan, and Vincent Merenda, STUDIOIP LAW, for
plaintiffs.
Melanie A. Miller and Heather L. Marx, COZEN O’CONNOR, for defendants.
Plaintiff Charles Wachendorfer and defendant Doug Lennick are former
colleagues who both specialize in leadership and business consulting. In this lawsuit,
Wachendorfer and his company (collectively “Wachendorfer”) allege that Lennick and
his companies (collectively “Lennick”) are using meritless threats of copyright
infringement to impede Wachendorfer’s new business.
This matter is before the Court on Lennick’s partial motion to dismiss. Lennick
argues that Counts I and II should be dismissed because the Court lacks subject‐matter
jurisdiction, that Counts IV and V should be dismissed because they are preempted, and
CASE 0:25-cv-01298-PJS-DLM Doc. 50 Filed 03/26/26 Page 1 of 18

that Count III should be dismissed insofar as it seeks to impose liability against Lennick
in his individual capacity. For the reasons explained below, Lennick’s motion is granted
except as to Count III.
I. BACKGROUND
A. Business History
Wachendorfer joined Think2Perform, Inc. (formerly Lennick Aberman Group,
LLC (“LAG”)) as an employee in 2004. First Amended Complaint (“FAC”) ¶ 20.
Wachendorfer signed an intellectual‐property agreement (“the LAG Agreement”) that
assigned to LAG all “rights, titles, and interest in” materials he created for LAG,
including those that incorporated materials that Wachendorfer had created before
joining LAG. Ex. C ¶ 2. The LAG Agreement also gave Wachendorfer a “royalty‐free,
non‐assignable license to use the LAG Property in unadulterated form for [his] personal
benefit” when his employment at Think2Perform ended. Id. ¶ 4. Wachendorfer
eventually became Think2Perform’s Chief Operating Officer and joined its board in
2013. Ex. H at Ex. B; Ex. J ¶ 4.
In 2020, Wachendorfer and Lennick decided to co‐write a book on leadership
(“the Book”) in their personal capacities. FAC ¶ 27; Pl.’s Mem. at 6. The two financed
the Book themselves and wrote it on their own time. FAC ¶¶ 29, 33. The Book
discussed leadership concepts including “What Do You Want for Yourself”
-2-
CASE 0:25-cv-01298-PJS-DLM Doc. 50 Filed 03/26/26 Page 2 of 18

(“WDYWFY”) and the “acid test” (a process for ascertaining whether a goal is
achievable). Id. ¶¶ 28; Pl.’s Mem. at 6. Wachendorfer and Lennick assigned the
copyright covering the Book to their publisher. FAC ¶¶ 27, 34–38; Ex. A. The Book was
published in 2023. Pl.’s Mem. at 6.
Wachendorfer resigned from Think2Perform in January 2024. 1 After his
departure, Wachendorfer founded Charles F. Wachendorfer Consulting Group LLC
(d/b/a Decision Reflex). FAC ¶ 24. Decision Reflex offers leadership and business‐
development services in competition with Think2Perform. Id.
B. Copyright Disputes
After leaving Think2Perform, Wachendorfer unsuccessfully attempted to
negotiate a license permitting Decision Reflex to use certain intellectual property owned
by Think2Perform. Id. ¶ 25. Wachendorfer contends that, sometime during those
negotiations, Lennick “abruptly shifted course” from being cordial to “issu[ing] a series
of meritless enforcement actions.” Pl.’s Mem. at 7. Those allegedly meritless
enforcement actions are the subject of this lawsuit.
One enforcement action related to a PowerPoint presentation that Wachendorfer
created. On October 21, 2024, Lennick sent Wachendorfer a cease‐and‐desist letter
1The FAC alleges that Wachendorfer resigned in January 2025, see FAC ¶ 23, but
this is a typographical error. See Ex. J ¶ 5 (Wachendorfer identifying the date of his
resignation as January 8, 2024).
-3-
CASE 0:25-cv-01298-PJS-DLM Doc. 50 Filed 03/26/26 Page 3 of 18

warning that the presentation infringed Think2Perform’s copyrighted work, including
“underlying copyrighted material” from the Book. Ex. D.
A second enforcement action related to a TEDx talk entitled “How to Set Goals
You’ll Actually Accomplish” that Wachendorfer recorded on November 2, 2024. FAC
¶ 62. Wachendorfer gave the talk in his personal capacity and discussed leadership
principles such as the acid test. Id. ¶ 63. TEDx posted the talk to its website and
YouTube channel in early February 2025. Id. ¶ 64.
Days after TEDx posted the talk, Lennick sent TEDx a notification pursuant to the
Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 512, claiming that the video of
the talk was infringing.2 Id. ¶ 65; Ex. E. Lennick, who is not a lawyer, sent the notice
without seeking the advice of counsel. See Hearing Tr. at 11:19–14:12; Ex. E. The notice
explained that Wachendorfer’s TEDx talk infringed Think2Perform’s “proprietary
model”—that is, the five‐step WDYWFY process (step two of which is the acid test).
FAC ¶¶ 65–66; Ex. E. According to the notice, WDYWFY and the acid test are concepts
“owned by Think2Perform” and protected by U.S. Copyright Registration No.
TX0009386834 (“the ‘834 copyright”). Id. ¶ 66; Ex. E. The ‘834 copyright covers
Think2Perform’s “Leadership Program,” Ex. B, which is described on Think2Perform’s
2The DMCA is a 1998 amendment to the Copyright Act, 17 U.S.C. § 101 et seq.
-4-
CASE 0:25-cv-01298-PJS-DLM Doc. 50 Filed 03/26/26 Page 4 of 18

website. After receiving the notice, TEDx removed the video of Wachendorfer’s talk,
which, at that point, had been viewed 31,000 times. FAC ¶ 67.
Wachendorfer submitted a counter‐notice to TEDx insisting that his talk did not
infringe the ‘834 copyright, and he also asked Lennick to instruct TEDx to re‐post the
talk. Id. ¶¶ 75–76; Exs. F, G. Lennick initially resisted. Ex. H. After further
communication with Wachendorfer, however, Lennick agreed to ask TEDx to re‐post the
video, but also asked Wachendorfer to remove all mention of the term “acid test.” FAC
¶ 80. Wachendorfer declined to do so, and TEDx ultimately re‐posted the original video.
FAC ¶ 81.
Wachendorfer filed this lawsuit on April 7, 2025, claiming that the takedown
notice that Lennick sent to TEDx was a material misrepresentation under the DMCA.
ECF No. 1. Wachendorfer also claims that, when Lennick sent the TEDx takedown
notice, Lennick tortiously interfered with economic advantage and contract. Finally,
Wachendorfer asks the Court to declare that he did not infringe the ‘834 copyright and to
precisely define the scope of the “Leadership Program” that is protected by that
copyright.
-5-
CASE 0:25-cv-01298-PJS-DLM Doc. 50 Filed 03/26/26 Page 5 of 18

II. ANALYSIS
A. Legal Standard
Lennick moves to dismiss some counts of the FAC under Fed. R. Civ. P. 12(b)(1)
for lack of subject‐matter jurisdiction and other counts under Fed. R. Civ. P. 12(b)(6) for
failure to state a claim upon which relief can be granted.
As for Rule 12(b)(1): “Federal courts are courts of limited jurisdiction, possessing
only that power authorized by Constitution and statute.” Gunn v. Minton, 568 U.S. 251,
256 (2013) (citation modified). As a result, subject‐matter jurisdiction “is a threshold
requirement,” and courts must assure themselves that they have subject‐matter
jurisdiction before ruling on any other matters. Turner v. Armontrout, 922 F.2d 492, 493
(8th Cir. 1991) (citing Kronholm v. FDIC, 915 F.2d 1171, 1174 (8th Cir. 1990)).
Wachendorfer has “the burden of proof that jurisdiction does in fact exist” over his
claims. Osborn v. United States, 918 F.2d 724, 730 (8th Cir. 1990) (quotation omitted).
A defendant may raise two types of challenges to subject‐matter jurisdiction:
facial or factual. Id. at 729 n.6. In addressing a facial challenge, a court limits itself to the
four corners of the complaint, and “all of the factual allegations concerning jurisdiction
are presumed to be true . . . .” Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993) (citation
omitted). In addressing a factual attack, a court may “consider[] matters outside the
pleadings, and the non‐moving party does not have the benefit of 12(b)(6) safeguards.”
-6-
CASE 0:25-cv-01298-PJS-DLM Doc. 50 Filed 03/26/26 Page 6 of 18

Davis v. Anthony, Inc., 886 F.3d 674, 679 (8th Cir. 2018) (quoting Osborn, 918 F.2d at 729
n.6).
As for Rule 12(b)(6): In reviewing a motion to dismiss under Fed. R. Civ. P.
12(b)(6), a court must accept as true all of the factual allegations in the complaint and
draw all reasonable inferences in the plaintiff’s favor. Aten v. Scottsdale Ins. Co., 511 F.3d
818, 820 (8th Cir. 2008). Although the factual allegations in the complaint need not be
detailed, they must be sufficient to “raise a right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Ordinarily, if the parties present, and
the court considers, matters outside of the pleadings, the motion must be treated as a
motion for summary judgment. Fed. R. Civ. P. 12(d). But the Court may consider
materials that are necessarily embraced by the complaint, as well as any exhibits
attached to the complaint, without converting the motion into one for summary
judgment. Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697 n.4 (8th Cir. 2003).
B. Declaratory Judgment Claims
Wachendorfer seeks a declaratory judgment that neither his TEDx talk nor
PowerPoint infringe any copyright (Count I) and a declaratory judgment to clarify what,
exactly, the ‘834 copyright protects (Count II). Lennick moves to dismiss both counts for
lack of jurisdiction, arguing that neither claim is ripe for purposes of Article III and
neither presents an “actual controversy” for purposes of the Declaratory Judgment Act.
-7-
CASE 0:25-cv-01298-PJS-DLM Doc. 50 Filed 03/26/26 Page 7 of 18

28 U.S.C. § 2201(a). Lennick’s jurisdictional challenge is facial, and thus, as he
recognizes, the Court must accept as true all of the facts pleaded in Wachendorfer’s
complaint. Def.’s Mem. at 10 n.2.
Article III’s requirement that a controversy be “ripe” is jurisdictional, while the
Declaratory Judgment Act’s requirement that a controversy be “actual” is not, but the
two requirements are identical in substance. See Steffel v. Thompson, 415 U.S. 452, 458
(1974). A court must ask “whether the facts alleged, under all the circumstances, show
that there is a substantial controversy, between parties having adverse legal interests, of
sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”
MedImmune, Inc. v. Genetech, Inc., 549 U.S. 118, 127 (2007) (quotation and footnote
omitted). A declaratory‐judgment action can be ripe even “if no injury has yet
occurred,” as long as the anticipated injury is “certainly impending.” Pub. Water Supply
Dist. No. 8 of Clay Cnty. v. City of Kearney, 401 F.3d 930, 932 (8th Cir. 2005) (quotation and
citation omitted). “Whether a case is ripe depends on the state of the case at the time of
review, not at the time of filing.” Id. (citations omitted).
Copyright protections extend to tangible expressions of ideas, not to the ideas
themselves. 17 U.S.C. § 102. To be infringing, an accused work must be “substantially
similar” to a copyrighted work “in both ideas and expression.” Hartman v. Hallmark
Cards, Inc., 833 F.2d 117, 120 (8th Cir. 1987) (citation omitted). A plaintiff seeking a
-8-
CASE 0:25-cv-01298-PJS-DLM Doc. 50 Filed 03/26/26 Page 8 of 18

declaratory judgment that a work does not infringe another’s copyright must have “a
real and reasonable apprehension that he will be subject to liability if he continues the
allegedly infringing conduct.” Amaretto Ranch Breedables v. Ozimals Inc., 907 F. Supp. 2d
1080, 1085 (N.D. Cal. 2012) (citation modified).
Wachendorfer’s declaratory‐judgment claims must be dismissed for lack of
jurisdiction because the FAC does not establish that he has a “real and reasonable
apprehension” that he will be found liable for copyright infringement if his TEDx talk
continues to be available online or if he continues to use his PowerPoint.
As for the TEDx talk: The DMCA protects online‐service providers from liability
for hosting material that infringes a copyright. See generally 17 U.S.C. § 512. The DMCA
also provides a vehicle for copyright owners to ask online‐service providers to remove
infringing content, known as a takedown notice. See § 512(c)(3). Finally, the DMCA
provides a remedy for those who are injured by a false takedown notice that causes an
online‐service provider to remove non‐infringing content. See § 512(f).
Under many circumstances, the fact that someone issued a false takedown notice
to an online‐service provider would create an “actual controversy” between that person
and the creator of the falsely accused work. Here, though, after consulting with counsel,
Lennick has clearly and publicly repudiated any claim that Wachendorfer’s TEDx talk
infringes the ‘834 copyright. Hearing Tr. at 11:19–14:12. At Wachendorfer’s request,
Lennick also asked TEDx to re‐post the video of the talk. FAC ¶ 80. Having told a
-9-
CASE 0:25-cv-01298-PJS-DLM Doc. 50 Filed 03/26/26 Page 9 of 18

federal judge that he does not claim infringement, and having asked that the TEDx video
be re‐posted on the Internet, Lennick is in no position to sue Wachendorfer for copyright
infringement. 3 If Wachendorfer fears such a claim, that fear is not reasonable. Compare
U.S. Water Servs., Inc. v. Chem Treat, Inc., 794 F.3d 966, 976 (8th Cir. 2015) (exercising
jurisdiction over a declaratory‐judgment claim in a patent case when an infringement
suit was “the next logical, if not inevitable, step” (quotation omitted)).
As for the PowerPoint: In his brief and during oral argument before the Court,
Lennick clearly and publicly agreed that Wachendorfer’s mere use of ideas such as
WDYWFY and the acid test does not violate any copyright. Lennick also clearly and
publicly stated that the PowerPoint does not infringe any copyright. Hearing Tr. at
3:21–4:4, 14:4–8, 33:2–11. In other words, Wachendorfer can continue to use the
PowerPoint, and he can mention, explain, and provide opinions about WDYWFY and
the acid test. It seems extremely unlikely that Lennick will threaten a future copyright‐
infringement claim, given the concessions that he made before this Court, and given that
the copyright covering the Book—in which the concepts of WDYWFY and the acid test
are described—is owned by the publisher, not Lennick. See Ex. A.
3Wachendorfer’s counsel suggested at oral argument that the voluntary‐cessation
exception to mootness should apply to save his claims from being deemed unripe.
Hearing Tr. at 40:5–19. But “[b]ecause voluntary cessation analysis contemplates prior
conduct, it can only apply to mootness analysis[,]” not to ripeness analysis. See Poor
Bear v. Cnty. of Jackson, No. 14‐CV‐5059, 2016 WL 3435181, at *4 (D.S.D. June 17, 2016).
-10-
CASE 0:25-cv-01298-PJS-DLM Doc. 50 Filed 03/26/26 Page 10 of 18

Finally, Wachendorfer’s request that the Court define, in the abstract, what the
‘834 copyright does and does not cover is plainly unripe. In light of Lennick’s concession
that neither the TEDx talk nor the PowerPoint infringes the ‘834 copyright, there is no
actual controversy between the parties—no controversy about whether any work that
Wachendorfer has created or plans to create would infringe. What Wachendorfer seeks
is an advisory opinion, and federal courts do not have authority to issue such opinions.
See Pub. Water Supply Dist. No. 8 of Clay Cnty., 401 F.3d at 932.
For these reasons, Wachendorfer’s declaratory‐judgment claims—found in
Counts I and II of the FAC—are dismissed without prejudice for lack of jurisdiction.
C. Tortious Interference Claims
Wachendorfer also asserts claims of tortious interference with prospective
economic advantage (Count IV) and tortious interference with contract (Count V).
Lennick contends that both claims are preempted by the Copyright Act (specifically, the
DMCA), and therefore should be dismissed.
As Judge Eric Tostrud succinctly explained:
There are three types of ordinary preemption. (1) Express
preemption occurs where a federal law explicitly prohibits or
displaces state regulation in a given field. (2) Conflict
preemption, as its name implies, occurs where a state law
directly conflicts with federal law. Conflict preemption
occurs when compliance with both federal and state laws is
impossible, and when a state law stands as an obstacle to the
accomplishment and execution of the full purposes and
objectives of Congress. (3) Finally, there is field preemption.
-11-
CASE 0:25-cv-01298-PJS-DLM Doc. 50 Filed 03/26/26 Page 11 of 18

Where Congress occupies an entire field . . . even
complementary state regulation is impermissible. Field
preemption reflects a congressional decision to foreclose any
state regulation in the area, even if it is parallel to federal
standards.
Stursberg v. Morrison Sund PLLC, 648 F. Supp. 3d 1075, 1086 (D. Minn. 2023) (quotations
and citations omitted), aff’d, 112 F.4th 556 (8th Cir. 2024).
Here, Lennick relies upon express preemption. The Copyright Act “provides the
exclusive source of protection for ‘all legal and equitable rights that are equivalent to any
of the exclusive rights within the general scope of copyright as specified by § 106’ of the
Copyright Act.” Davidson & Assocs. v. Jung, 422 F.3d 630, 638 (8th Cir. 2005) (quoting 17
U.S.C. § 301(a)) (cleaned up). The DMCA, therefore, preempts claims that (1) are based
upon works within the Copyright Act’s purview and (2) seek to vindicate rights already
protected by the Act. See id. In other words, if “the gravamen” of Wachendorfer’s
tortious‐interference claims “is an alleged violation of [his] exclusive rights under the
Copyright Act,” the claims are preempted. 220 Laby’s, Inc. v. Babaii, No. CV‐08‐6125,
2008 WL 5158863, at *8 (C.D. Cal. Dec. 8, 2008).
Under the DMCA, the subject of a false takedown notice may recover “any
damages, including costs and attorneys’ fees,” as long as the subject is “injured by such
misrepresentation, as the result of the service provider relying upon such
misrepresentation in removing or disabling access to the material.” 17 U.S.C. § 512(f).
Courts have held that tortious‐interference claims predicated solely on false DMCA
-12-
CASE 0:25-cv-01298-PJS-DLM Doc. 50 Filed 03/26/26 Page 12 of 18

takedown notices are preempted by the DMCA. E.g., FurnitureDealer.net, Inc. v.
Amazon.com, Inc., No. 18‐CV‐0232 (JRT/HB), 2019 WL 3738622, at *4–5 (D. Minn. Aug. 8,
2019) (tortious interference with business advantage); Hyphy Music, Inc. v. Sena, No. 21‐
CV‐0216, 2025 WL 842893, at *9 (E.D. Cal. Mar. 18, 2025) (tortious interference with
contract). This Court agrees and concludes that Wachendorfer’s tortious‐interference
claims are preempted by the DMCA.
First, the heart of Wachendorfer’s claim for tortious interference with economic
advantage is the false takedown notice. FAC ¶¶ 102–04. If the notice has caused injury
to Wachendorfer—or if Wachendorfer suffers injury in the future caused by the notice—
then Wachendorfer can seek damages and other remedies under the DMCA. See
FurnitureDealer.net, 2019 WL 3738622, at *5. Wachendorfer avers that he will sustain
more damages “should defendants continue to falsely allege to third parties” that
Wachendorfer is infringing. FAC ¶¶ 103, 104. But if Lennick makes another false
allegation of copyright infringement, Wachendorfer can sue him. If Lennick makes the
allegation in a DMCA takedown notice, then Wachendorfer’s claim will likely be
preempted. But if Lennick makes the allegation in some other way, then Wachendorfer’s
claim will likely not be preempted—at least not by the DMCA. As things stand, the only
plausible claim of tortious interference with economic advantage pleaded by
Wachendorfer relies on the false takedown notice, and that claim is preempted by the
DMCA.
-13-
CASE 0:25-cv-01298-PJS-DLM Doc. 50 Filed 03/26/26 Page 13 of 18

The false takedown notice is likewise the gravamen of Wachendorfer’s claim for
tortious interference with contract. The FAC alleges that Lennick tortiously interfered
with the LAG Agreement. FAC ¶ 106. The only alleged interference, however, is
Lennick sending the false takedown notice, which resulted in the (temporary) removal of
Wachendorfer’s TEDx talk. Id. The DMCA claim therefore can vindicate any injury
suffered by Wachendorfer as a result of the alleged tortious interference. See Hyphy Grp.,
2025 WL 842893, at *9 (holding that a claim that the defendants tortiously interfered with
performance of a contract by making “an erroneous claim of copyright” was preempted
by the DMCA).
In sum, because Wachendorfer does not seek to vindicate any right independent
from those protected by the DMCA, his state‐law claims are preempted.
D. Misrepresentation Claim
Finally, Count III alleges that the defendants knew that the takedown notice sent
to TEDx was false and thus they should be held liable under the DMCA. Lennick moves
to dismiss this claim insofar as it seeks to hold him personally liable because (1) Lennick
does not own the copyright cited in the takedown notice and (2) Lennick was acting as a
corporate officer and agent when he sent the takedown notice. Both arguments are
meritless.
First, Lennick argues that liability under the DMCA can only be imposed on the
owner of a copyright who submits a false takedown notice alleging infringement of that
-14-
CASE 0:25-cv-01298-PJS-DLM Doc. 50 Filed 03/26/26 Page 14 of 18

copyright. Hearing Tr. at 18:3–19:18.4 Lennick points out that the copyright mentioned
in the takedown notice—the ‘834 copyright—is owned by Think2Perform, not Lennick,
and thus, Lennick says, he cannot be held liable. Id.; Ex. B.
Lennick’s argument is not supported by either the text of the DMCA or by the
cases applying it. The DMCA provides that “[a]ny person” who makes a material
misrepresentation in a takedown notice may be held liable. 17 U.S.C. § 512(f). True,
§ 512(f) claims are usually brought against owners of copyrights, see, e.g., Nat’l Acad. of
Television Arts & Scis., Inc. v. Multimedia Sys. Design, Inc., 551 F. Supp. 3d 408, 432
(S.D.N.Y. 2021), but that is because copyright owners are most likely to issue false
takedown notices. After all, someone who does not own a copyright generally does not
have much incentive to accuse someone else of infringing that copyright. But courts
have nevertheless sustained DMCA claims against individuals who, when issuing false
takedown notices, claim to be acting on behalf of a corporate copyright owner with
which they are not affiliated. See Bungie Inc. v. Minor, No. 22‐CV‐0371, 2024 WL 965010,
at *2 (W.D. Wash. Mar. 6, 2024). The fact that Lennick did not own the ‘834 copyright
does not shield him from personal liability for issuing a takedown notice that falsely
claimed infringement of that copyright.
4Lennick made this argument in earnest for the first time at oral argument, but
implied it in his briefing. E.g., Def.’s Reply at 10.
-15-
CASE 0:25-cv-01298-PJS-DLM Doc. 50 Filed 03/26/26 Page 15 of 18

Nor is Lennick shielded from personal liability because he sent the takedown
notice on behalf of Think2Perform. The DMCA does not abrogate the general principle
that a corporate agent can be held personally liable for tortious conduct in which he
engages on behalf of a corporation. See Restatement (Third) of Agency, § 7.01 cmt. c
(A.L.I. 2006) (noting that a statute imposing a public‐law penalty for violations will
subject the agent to liability unless the imposition of such liability is inconsistent with the
statute); id. cmt. d (noting that corporate officers and directors can be held personally
liable for their own conduct without “pierc[ing] the corporate veil”). Lennick
acknowledges as much. Def.’s Reply at 10 (“The standard is clear—to hold Lennick
personally liable, the FAC needs to allege he personally engaged in tortious conduct.”).
In Asher Worldwide Enters. LLC v. Housewaresonly.com Inc., No. 12‐CV‐0568, 2013
WL 4516415, at *3 (N.D. Ill. Aug. 26, 2013), the court rejected a motion to dismiss
Copyright Act claims that had been asserted against both a corporation and its officers,
explaining that officers can be held personally liable if “they acted willfully and
knowingly and personally participated in the infringing activities or used the
corporation to carry out their own deliberate infringement” (citation omitted). Although
Asher addressed alleged infringement rather than misrepresentation, there is no reason
to treat the two differently under the Copyright Act.
Unlike in Asher, the FAC in this case contains no explicit allegations of Lennick’s
personal, willful, and knowing participation in the takedown notice. 2013 WL 4516415,
-16-
CASE 0:25-cv-01298-PJS-DLM Doc. 50 Filed 03/26/26 Page 16 of 18

at *3–4; FAC ¶¶ 65–68, 93–100. But the false takedown notice clearly was sent by
Lennick; his name and address appear on the top, he “signs” it on the bottom, and the
text of the notice makes it clear that he is the author. Ex. E. Moreover, the parties agree
that Lennick composed and sent the notice without first having the notice reviewed by
an attorney. Hearing Tr. at 11:19–14:12; Ex. E; cf. FAC ¶ 72; see also Pl.’s Mem. at 18.
Under the circumstances, the Court finds that the FAC pleads a plausible DMCA
misrepresentation claim against Lennick.5
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein, IT
IS HEREBY ORDERED THAT:
1. 	Defendants’ partial motion to dismiss plaintiffs’ first amended complaint
[ECF Nos. 25, 21] is GRANTED IN PART as follows:
a. 	The motion is GRANTED as to all claims against
Think2Perform Exam Services Co.
b. 	The motion is GRANTED as to Counts I, II, IV, and V.
i. 	Counts I and II are DISMISSED WITHOUT
PREJUDICE for lack of jurisdiction.
5The Court grants defendants’ unopposed motion to dismiss all claims against
Think2Perform Exam Services Co. Def.’s Mot. at ¶ 2; Def.’s Mem. at 14–16; Pl.’s Mem.
at 26–27.
-17-
CASE 0:25-cv-01298-PJS-DLM Doc. 50 Filed 03/26/26 Page 17 of 18

ii. 	Counts IV and V are DISMISSED WITH PREJUDICE.
2. 	The motion is DENIED as to Count III.
Dated: March 26, 2026 	/s/ Patrick J. Schiltz
Patrick J. Schiltz, Chief Judge
United States District Court
-18-
CASE 0:25-cv-01298-PJS-DLM Doc. 50 Filed 03/26/26 Page 18 of 18