Deripaska v. Associated Press ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
OLEG V. DERIPASKA, )
)
Plaintiff, )
)
v. ) Civil Action No. 17-00913 (ESH)
)
THE ASSOCIATED PRESS, )
)
Defendant. )
)
MEMORANDUM OPINION
Oleg Deripaska, a self-described private investor and industrialist, has sued the
Associated Press (“AP”), claiming defamation by direct statements and by implication. He
argues that the AP falsely accused him of “involvement in criminal activities and other
improprieties.” (Compl. ¶ 4.) The AP has filed two motions to dismiss, one under Federal Rule
of Civil Procedure 12(b)(6), and the other under the District of Columbia Anti-Strategic Lawsuits
Against Public Participation (Anti-SLAPP) Act of 2010, D.C. Code § 16-5502(a). Upon
consideration of the motions, opposition, and record, the Court finds that Deripaska has failed to
state a claim upon which relief can be granted and therefore grants the defendant’s motion to
dismiss under Rule 12(b)(6). A separate Memorandum Opinion, ECF No. 16, addresses the
AP’s Anti-SLAPP special motion to dismiss.
BACKGROUND
The facts here are relatively straightforward. On March 22, 2017, the AP separately
published an article and online video discussing the relationship between Donald Trump’s
former campaign manager Paul Manafort and Russia. (Compl. ¶¶ 5–7, ECF No. 1.)
The article opens with the sentence, “Before signing up with Donald Trump, former
campaign manager Paul Manafort secretly worked for a Russian billionaire with a plan to
‘greatly benefit the Putin Government,’ The Associated Press has learned.” (Exh. A at 1, ECF
No. 6.) The article goes on to explain that “Manafort proposed a confidential strategy plan as
early as June 2005” to Deripaska, (id.), who is described as an “aluminum magnate” and “a close
Putin ally with whom Manafort eventually signed a $10 million annual contract beginning in
2006.” (Id. at 2.) Deripaska alleges that the article contains three defamatory statements and
that it defames him when read as a whole. (Compl. ¶¶ 5–7, ECF No. 1.)
The three alleged defamatory “statements” are each comprised of between two and four
non-consecutive sentences pulled from the article. The first statement includes a sequence of
alleged falsehoods that Deripaska claims inculpate him in criminal activity. (Compl. ¶¶ 15–26.)
Deripaska alleges that the following three sentences make up the first statement: 1) “Manafort
worked for Deripaska pursuant to a 2005 strategy plan that was to ‘greatly benefit the Putin
Government’” (Opp. Mot. Dismiss at 9–10, ECF No. 10); 2) “The federal Foreign Agents
Registration Act requires that ‘people who lobby in the U.S. on behalf of foreign political leaders
or political parties must provide detailed reports about their actions to the department,” and
“[w]illfully failing to register [under FARA] is a felony” (id. at 10); and 3) “Manafort did not
disclose details about the lobbying work to the Justice Department during the period the contract
was in place.” (Id.) Deripaska argues that by “express[ing] certainty about the connection
between the plans set forth in the 2005 Manafort Memo and funds paid by Mr. Deripaska to Mr.
Manafort” (Compl. ¶ 17), alongside the assertion that the memo proposed a “model [to] greatly
benefit the Putin Government,” (id. ¶ 16), the AP made “a false and defamatory statement.” (Id.
¶ 18.) Specifically, Deripaska alleges that the AP “assert[ed] in substance that Mr. Deripaska
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paid Mr. Manafort to act as an unregistered foreign agent,” and thus made “him appear to have
been engaged in criminal conduct.” (Id. ¶ 24.)
As for the second allegedly defamatory statement, Deripaska turns to a quote from United
States Senator Lindsey Graham and a statement summarizing the view of the House Intelligence
Committee Democrats. He alleges that the following two sentences makes up the second
statement: 1) “Republican Sen. Lindsey Graham of South Carolina, a frequent Trump critic, said
of Manafort: ‘Clearly if he’s getting millions of dollars from a billionaire close to Putin, to
basically undermine democratic movements, that’s something I’d want to know about” (Opp.
at 10); and 2) “Democrats on the House intelligence committee said the new revelations will
feature in their investigations.” (Id.) Deripaska claims the second statement “strongly and
falsely conveys that Mr. Deripaska’s contracts with Mr. Manafort had criminal implications and
merit a congressional investigation.” (Compl. ¶ 33.)
The third allegedly defamatory statement strings together several sentences discussing
Manafort’s involvement in events in the Ukraine in 2014. (Id. ¶¶ 39–50.) Deripaska alleges that
the following language makes up the third defamatory statement: 1) “Deripaska became one of
Russia’s wealthiest men under Putin, buying assets abroad in ways widely perceived to benefit
the Kremlin’s interests” (Opp. at 10); 2) “Manafort worked as Trump’s unpaid campaign
chairman last year from March until August, a period that included the Republican National
Convention that nominated Trump in July” (id.); and 3) “The newly obtained business records
link Manafort more directly to Putin’s interests in the region. According to those records and
people with direct knowledge of Manafort’s work for Deripaska, Manafort made plans to open
an office in Moscow, and at least some of his work in Ukraine was directed by Deripaska, not
local political interests there,” (id.); and 4) “[F]ederal criminal prosecutors became interested in
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Manafort’s activities years ago as part of a broad investigation to recover stolen Ukraine assets
after the ouster of pro-Russian President Viktor Yanukovych there in early 2014.” (Id.)
Deripaska argues that their “juxtaposition . . . reasonably conveys that Mr. Deripaska stole
Ukrainian assets in 2014, and that he is implicated in federal prosecutors’ investigation of that
theft . . . [and] that the alleged theft of assets from Ukraine is somehow tied to the Trump
Campaign Controversy.” (Compl. ¶ 44.) As a result, Deripaska alleges that “[r]eaders of the
Article and of its numerous republications by news outlets around the world have been left with
the impression that Mr. Deripaska’s private, commercial dealings were—and still may be—
deeply intertwined with the Trump Campaign Controversy.” (Id. ¶ 7.)
The AP has moved to dismiss the complaint under Rule 12(b)(6), arguing that the first
statement is not capable of defamatory meaning and is not “of-and-concerning” Deripaska, the
second statement is nonactionable because it is both an opinion and privileged, and the third
statement does not reasonably convey the defamatory implication alleged. (Mot. Dismiss, ECF
No. 6.) The AP also argues in the alternative that Deripaska is a limited-purpose public figure
and has failed to allege publication with actual malice. (Id. at 28–40.)
LEGAL STANDARD
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“There is no heightened pleading standard for defamation claims in the District of Columbia.”
Intelsat USA Sales Corp. v. Juch-Tech, Inc., 935 F. Supp. 2d 101, 117 (D.D.C. 2013) (citing
Solers, Inc. v. Doe, 977 A.2d 941, 948 (D.C. 2009)). Rather, the Court “must accept the
allegations of the complaint as true, drawing all inferences in the plaintiff’s favor,” and will
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dismiss under Rule 12(b)(6) “only if it is clear that no relief could be granted under any set of
facts that could be proved consistent with the allegations.” Croixland Props. Ltd. P’ship v.
Corcoran, 174 F.3d 213, 215 (D.C. Cir. 1999). But unless a plaintiff is able to nudge his or her
claim “across the line from conceivable to plausible,” the complaint must be dismissed.
Twombly, 550 U.S. at 571.
In assessing “whether a complaint states a claim, the court may consider the facts alleged
in the complaint, documents attached thereto or incorporated therein, and matters of which it
may take judicial notice.” Farah v. Esquire Magazine, 736 F.2d 528, 534 (D.C. Cir. 2013).
“Judicial notice is properly taken of publicly available historical articles,” which are in some
cases attached to a defendant’s motion to dismiss. Id. At this stage of review in a defamation
case, the Court must “decide whether the disputed article (1) contains express or implied
verifiably false statements of fact, which (2) are reasonably capable of defamatory meaning or
otherwise place appellant in an offensive false light.” Weyrich v. New Republic, Inc., 235 F.3d
617, 623 (D.C. Cir. 2001).
ANALYSIS
“In order to state a claim of defamation, [a] plaintiff must allege and prove four elements:
(1) that the defendant made a false and defamatory statement concerning the plaintiff; (2) that the
defendant published the statement without privilege to a third party; (3) that the defendant’s fault
in publishing the statement amounted to at least negligence; and (4) either that the statement was
actionable as a matter of law irrespective of special harm or that its publication caused the
plaintiff special harm.” Solers, Inc., 977 A.2d at 948.1 The First Amendment requires that
1
The parties do not dispute that substantive D.C. law applies in this diversity case. See, e.g.,
Weyrich, 235 F.3d at 626–27 (discussing choice of law in a defamation action brought in a
diversity case in D.C.).
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where a public figure pursues a libel action, the public figure must ultimately “demonstrate by
clear and convincing evidence that the defendant published the defamatory falsehood with
‘actual malice,’ that is, with ‘knowledge that it was false or with reckless disregard of whether it
was false or not.’” Liberty Lobby, Inc. v. Dow Jones & Co., Inc., 838 F.2d 1287, 1292 (D.C. Cir.
1988) (quoting N.Y. Times v. Sullivan, 376 U.S. 254, 280 (1964)).
Actionable statements must be both false and defamatory. Rosen v. Am. Israel Pub.
Affairs Comm., Inc., 41 A.3d 1250, 1256 (D.C. 2012). Only publications tending “to injure
plaintiff in his trade, profession or community standing, or lower him in the estimation of the
community” can be defamatory. Id. And defamatory speech must rise to the level of making the
plaintiff appear “odious, infamous, or ridiculous”––it cannot be merely unpleasant or offensive.
Id. Liability for a statement on a matter of public concern “may be imposed only if the statement
is provably false.” Guilford Transp. Indus., Inc. v. Wilner, 760 A.2d 580, 596 (D.C. 2000)
(citing Milkovich v. Lorain Journal Co. et al., 497 U.S. 1, 19–20 (1990)). Although a statement
of opinion can be actionable where it implies “a provably false fact, or rel[ies] upon stated facts
that are provably false,” id., “if it is plain that a speaker is expressing a subjective view, an
interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of
objectively verifiable facts, the statement is not actionable.” Id. (quoting Guilford Transp.,
760 A.2d at 597).
I. LIMITED-PURPOSE PUBLIC FIGURE
The AP argues that Deripaska is a limited-purpose public figure “who has fairly exposed
himself to public discussion through his activities.” (Mot. Dismiss at 30.) As it applies to
Deripaska, the AP defines the public controversy in question as being over “Russian oligarchs
who act as de facto emissaries for the Russian government to expand their own influence along
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with Russia’s.” (Reply Mot. Dismiss at 16, ECF No. 11.) The AP also argues that Deripaska
has only alleged actual malice in a conclusory fashion. (Mot. Dismiss at 28.) Deripaska
counters that “he is not a limited-purpose public figure with respect to the Trump Campaign
Controversy,” which he argues is the “essential subject matter of the Article.” (Opp. at 28.)
Moreover, he argues that it is unnecessary to plead actual malice at the motion-to-dismiss stage.
Id. The Court finds that Deripaska is a limited-purpose public figure, and he has failed to
adequately allege the requisite intent.
Whether a plaintiff is a limited-purpose public figure is “a matter of law for the court to
decide.” Tavoulareas v. Piro, 817 F.2d 762, 772 (D.C. Cir. 1987). “The task of determining
whether a defamation plaintiff is a limited-purpose public figure is a difficult one, requiring a
highly fact-intensive inquiry that [some have] described as ‘trying to nail a jellyfish to the wall.’”
Doe No. 1 v. Burke, 91 A.3d 1031, 1041–42 (D.C. 2014) (quoting Moss v. Stockard, 580 A.2d
1011, 1030 (D.C. 1990)). Nevertheless, a “limited-purpose public figure is ‘an individual (who)
voluntarily injects himself or is drawn into a particular public controversy and therefore becomes
a public figure for a limited range of issues.’” Waldbaum v. Fairchild Pubs., Inc., 627 F.2d
1287, 1292 (D.C. Cir. 1980) (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974)).
According to the D.C. Circuit, a three-part inquiry is used to determine whether a
plaintiff is a limited-purpose public figure. “First, the court must identify the relevant
controversy and determine whether it is a public controversy. Second, the plaintiff must have
played a significant role in that controversy. Third, the defamatory statement must be germane
to the plaintiff’s participation in the controversy.” Jankovic v. Int’l Crisis Grp., 822 F.3d 576,
585 (D.C. Cir. 2016) [hereinafter Jankovic III] (citing Waldbaum, 627 F.2d at 1296–98). A
public controversy is one where people “actually were discussing some specific question,” and
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where “the press was covering the debate, reporting what people were saying and uncovering
facts and theories to help the public formulate some judgment.” Id. There may be “multiple
potential controversies, and it is often true that ‘a narrow controversy may be a phase of another,
broader one.’” Id. at 586 (quoting Waldbaum, 627 F.2d at 1297 n.27). “Indeed, courts often
define the public controversy in expansive terms.” Id. But where a controversy is defined
broadly, that is balanced by the next step, which requires that courts determine whether the
plaintiff “thrust himself to the forefront of the public controversy at issue.” Id.Deripaska is no stranger to news coverage related to his role as a Russian oligarch and
one of Putin’s closest confidantes. (See Mot. Dismiss at 2–9.) The Court notes that Deripaska
does not dispute any material facts presented in the AP’s discussion of the factual background as
it relates to Deripaska’s biography and his role in advancing Russian interests internationally.
(Opp. at 8 n.4.) Given this concession and the many articles cited that reference Deripaska on
this topic (see e.g., Mot. at 2–8, & n.2–33), there can be no doubt a public controversy exists
relating to Russian oligarchs acting on behalf of the Russian government. For the purposes of
the article in question—which touches on this broader issue as well as narrower concerns relating
to the Trump campaign’s contacts with Russia—Deripaska is a limited-purpose public figure.
Moreover, Deripaska has certainly “thrust himself to the forefront” of that controversy.
See Jankovic III, 822 F.3d at 586. Included among the undisputed biographical details is the fact
that “Deripaska is widely known as ‘Putin’s oligarch,’ and has boasted to reporters: ‘I don’t
separate myself from the state.’” (Mot. Dismiss at 4.) And, the article’s allegedly defamatory
statements relate to these very issues for they describe Deripaska as a Russian oligarch who
allegedly contracted with an American to promote Russian interests. This is precisely the area in
which Deripaska can be fairly described as a limited-purpose public figure who has pursued a
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central place in a public controversy, particularly given that Deripaska has been the subject of
more than a decade of media coverage on topics related to his wealth and his relationship with
the Russian government.2
As such, Deripaska is required to plausibly allege that the AP “published the defamatory
falsehood with ‘actual malice,’ that is, with ‘knowledge that it was false or with reckless
disregard of whether it was false or not.’” Liberty Lobby, 838 F.2d at 1292 (quoting N.Y. Times,
376 U.S. at 280); see also Twombly, 550 U.S. at 571. Deripaska does not succeed in doing so.
Rather, he claims that the AP’s failure to include details about the Ukraine’s domestic political
situation in 2005 indicates that the reporters were intentionally omitting “crucial background.”
(Opp. at 7–8.) As the AP points out, this simply is not enough to make out a plausible case of
actual malice.
Although Deripaska argues that alleging malice is unnecessary at this stage, his citation
for this assertion is Weyrich, where the D.C. Circuit stated that the second element of a false light
claim under D.C. law “tracks the First Amendment’s intent requirement for defamation claims
brought by public figures, and the court at this stage assumes the requisite state of mind.”
235 F.3d at 628. No citation follows this statement “assum[ing] the requisite state of mind.” Id.Upon consulting the relevant briefs, the Court finds that this is likely because the parties in
2
See, e.g., Tom Winter et al., Donald Trump Aide Paul Manafort Scrutinized for Russian
Business Ties, NBC News (Aug. 18, 2016), http://www.nbcnews.com/news/us-news/donald-
trump-aide-paul-manafort-scrutinized-russianbusiness-ties-n631241 (“Deripaska . . . is
considered by U.S. officials to be among Putin’s inner circle of billionaire businessmen.”);
Olivia Lang, Davos 2011: Day 2 as it happened, BBC News (Jan. 27, 2011),
http://news.bbc.co.uk/2/hi/business/davos/9377609.stm (“One of the world's richest men,
Russian aluminum king Oleg Deripaska, has been defending his country against claims that
investors are put off by politicians meddling in business.”); How to Make a Billion Dollars: Oleg
Deripaska, Aluminum King, Frontline World (Oct. 2003), http://www.pbs.org/frontlineworld/
stories/moscow/deripaska.html.
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Weyrich argued that “[i]f a statement cannot be proven obviously false, then it is impossible to
find ‘actual malice’ as a matter of law.” Br. for Appellee at 19 & n.10, Weyrich, 235 F.3d 617(2001); see id. at 54–55 (making the same argument as to a false light claim). In a later decision,
the D.C. Circuit cited Weyrich for the proposition that the “court must also assume that [the
defendant] made such statements with the requisite state of mind.” Farah v. Esquire Magazine,
736 F.3d 528, 534 (D.C. Cir. 2013). Despite this seemingly broad pronouncement, courts still
grant motions to dismiss based in part on the failure of a public figure to plausibly allege facts
that support an inference of actual malice in a defamation case. See, e.g., Parisi v. Sinclair,
845 F. Supp. 2d 215, 218–19 (D.D.C. 2012) (dismissing the complaint where it contained “no
factual allegation, other than the plaintiffs’ own assertions that the statements were false”); Boley
v. Atl. Monthly Grp., 950 F. Supp. 2d 249, 262–63 (D.D.C. 2013). Certainly, a plaintiff may not
need to invoke the magic words “actual malice,” cf. Parsi v. Daioleslam, 778 F.3d 116, 131
(D.C. Cir. 2015), but the complaint must “adequately allege[] facts that support an inference that
Defendant[] published the defamatory statements . . . with actual malice.” Zimmerman v. Al
Jazeera Am., LLC, 246 F. Supp. 3d 257, 280 (D.D.C. 2017).
It is true that “a plaintiff may prove the defendant’s subjective state of mind through the
cumulation of circumstantial evidence, as well as through direct evidence,” but “actual malice
does not automatically become a question for the jury whenever the plaintiff introduces pieces of
circumstantial evidence tending to show that the defendant published in bad faith.” Tavoulareas,
817 F.2d at 789. The kinds of evidence that would “likely support a finding of actual malice”
include evidence of fabrication, evidence that the story was “so inherently improbable that only a
reckless man would have put [it] in circulation,” and evidence that it was “based wholly on an
unverified anonymous telephone call or some other source that the defendant had obvious
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reasons to doubt.” Id. at 790 (quoting St. Amant v. Thompson, 390 U.S. 727, 732 (1968)).
In Lohrenz v. Donnelly, 350 F.3d 1272 (D.C. Cir. 2003), the D.C. Circuit explained that
even where the defendants “acted on the basis of a biased source and incomplete information,” it
was not enough to demonstrate that they “realized that [their] statement was false or that [they]
subjectively entertained serious doubts as to the truth of [their] statement.” Id. at 1284 (citing
Bose Corp. v. Consumers Union of U.S., 466 U.S. 485, 511 n.30 (1984)). In making an actual
malice determination, courts must “exercise particularly careful review,” and “make an
independent examination of the whole record.” Tavoulareas, 817 F.2d at 789.
Deripaska makes an accusation that does not come close to plausibly alleging that the AP
acted with actual malice or reckless disregard for the facts when it published the article in
question. See Lohrenz, 359 F.3d at 1285 (“Even where doubt-inducing evidence could be
discovered, a publisher may still opt not to seek out such evidence and may rely on an informed
source, so long as there is no ‘obvious reason to doubt’ that source.”). Even if more information
had been included about Deripaska’s business interests in Ukraine, it would not have undermined
the conclusion that he was also engaged in advancing Russian interests more broadly, because, as
the AP persuasively points out, “the two are not mutually exclusive.” (Reply at 22.)
Accordingly, the Court concludes that as a limited-purpose public figure, Deripaska
failed to adequately allege actual malice, but in the alternative, even if he has alleged actual
malice, he failed to state a claim upon which relief can be granted for the reasons that follow.
II. STATEMENT 1
Although Deripaska characterizes the first allegedly defamatory statement in a variety of
ways, the Court best understands Deripaska to argue that the AP’s article “includes verifiably
false allegations: that Deripaska had an arrangement with Manafort to ‘greatly benefit the Putin
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Government,’ that they had entered into a contract to implement the plans in the memo, that Mr.
Manafort’s dealings pursuant to that contract involved unregistered lobbying the United States
on behalf of Deripaska, and that Deripaska is therefore implicated in criminal activity.” (Opp.
at 18–19.) The AP responds that the article asks “whether Manafort should have registered as a
foreign agent but does not reach any conclusion beyond this point” (Reply at 5), making it
impossible to find an implication that Deripaska is criminally liable under the Foreign Agent
Registration Act. First, whether Manafort violated the law was presented as a question and
second, the question was about Manafort, not about Deripaska. (Id. at 5–6.) Moreover, to the
extent that Deripaska argues that associating him with the Russian government is defamatory
(Opp. at 25), the AP correctly suggests there is “no legal support for allowing a Russian citizen
with a diplomatic visa to maintain a libel claim based on a statement associating him with his
home country.” (Reply at 7.)
“Defamation is personal; a plaintiff who alleges defamation must show that the statement
was published ‘of and concerning’ him.” Provisional Gov’t of Republic of New Afrika v. Am.
Broad. Cos., Inc., 609 F. Supp. 104, 108 (D.D.C. 1985) (alterations omitted). “To satisfy the ‘of
and concerning’ element, it suffices that the statements at issue lead the listener to conclude that
the speaker is referring to the plaintiff by description, even if the plaintiff is never named or is
misnamed.” Jankovic v. Int’l Crisis Grp., 949 F.3d 1080, 1088–89 (D.C. Cir. 2007) [hereinafter
Jankovic I] (citing Croixland, 174 F.3d at 216).
In addition, the D.C. Circuit in Abbas v. Foreign Policy Group, LLC, 783 F.3d 1328(D.C. Cir. 2015), followed the “widely adopted defamation principle that questions are
questions,” id. at 1339, and explained that “as a matter of defamation law . . . a question,
‘however embarrassing or unpleasant to its subject, is not [an] accusation.’” Id. at 1338 (quoting
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Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1094 (4th Cir. 1993)). Because questions
“indicate a defendant’s lack of definitive knowledge about the issue . . . posing questions has
rarely given rise to successful defamation claims.” Id. Nevertheless, “a question’s wording or
tone or context sometimes may be read as implying the writer’s answer to that question.” Id.
at 1339.
Here, any possible answer to the question does not implicate Deripaska in a crime.
Deripaska claims that three sentences together make up the first statement. (Opp. at 9–10). The
three sentences are: 1) “Manafort worked for Deripaska pursuant to a 2005 strategy plan that was
to ‘greatly benefit the Putin Government’” (id. at 10); 2) “The federal Foreign Agents
Registration Act requires that ‘people who lobby in the U.S. on behalf of foreign political leaders
or political parties must provide detailed reports about their actions to the department,’ and
‘[w]illfully failing to register [under FARA] is a felony’” (id.); and 3) “Manafort did not disclose
details about the lobbying work to the Justice Department during the period the contract was in
place.’” (Id.) The article also states in relevant part that “Manafort told Deripaska in 2005 that
he was pushing policies as part of his work in Ukraine ‘at the highest levels of the U.S.
government—the White House, Capitol Hill and the State Department,’” but “Manafort did not
disclose details about the lobbying work to the Justice Department during the period the contract
was in place.” (Exh. A at 4.) After describing the Foreign Agents Registration Act, the article
quotes Graham: “‘I don’t know if he violated the Foreign Agent Registration Act,’ Sen. Graham
said, ‘but it’s something I think we all need to know more about.’” (Id.)
This discussion, while not literally formulated as a question, presents a hypothetical that
is inconclusive even as to Manafort, let alone Deripaska. If it implies that anyone broke the law,
the subject of that implication is limited to Manafort only. “[W]here the expressed facts are
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literally true”—and Deripaska does not allege that most of the facts recited above are false3—
“[t]he language must not only be reasonably read to impart the false innuendo, but it must also
affirmatively suggest that the author intends or endorses the inference.” Guilford Transp.,
760 A.2d at 597 (citing Chapin, 993 F.2d at 1092–93). Even assuming arguendo that the AP
unequivocally stated that Manafort had engaged in criminal activity, nothing in the article can be
read to impart that Deripaska engaged in criminal lobbying activity or “conspired to commit
alleged acts that would constitute violations of U.S. criminal law.” (See Opp. at 2.)
Deripaska also attempts to argue that even stating that he entered into a contract with
Manafort to support Russian interests abroad is false and defamatory standing alone. (Opp. at 4;
see Mot. Dismiss at 1.) Assuming, as the Court must at this stage, that this assertion is indeed
false, it remains unclear, under the circumstances, what about it is defamatory.
The D.C. Circuit has explained that where a “tie [to a political regime] is sufficiently
‘odious, infamous, or ridiculous,’ then the complaint has properly stated a cause of action for
defamation.” Jankovic I, 949 F.3d at 1091. “Merely associating somebody with a foreign
government would not ordinarily be defamatory,” id., but at least two examples show that it can
be. In Jankovic I, the plaintiff was described as a ‘crony’ of the Milosevic regime in Serbia,
which had committed war crimes, and so the D.C. Circuit concluded the association was enough
to state a prima facie case of defamation. Id. By contrast, while indicating in Southern Air
Transport, Inc. v. American Broadcasting Companies, Inc., 877 F.2d 1010 (D.C. Cir. 1989), that
inferring dealings between the plaintiff company and the South African government “clearly
would have a defamatory meaning because of the intense antipathy felt by a great number of
3
Deripaska apparently argues that AP’s reporting that he had a contract with Manafort to benefit
the Putin government is itself false and defamatory, but, as explained infra, the Court flatly
rejects that argument.
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Americans towards South Africa,” the D.C. Circuit considered the report in question “as a
whole” and concluded that “a reasonable viewer could not infer” such a partnership from the
report. Id. at 1015.
Here, the question must be, if Deripaska and Manafort did not have a contract to further
Russian interests, is it defamatory for the AP to say they did? Under the circumstances, the
answer must be no. Deripaska does not deny that a contract in some form existed. (Opp. at 6.)
Moreover, it is readily available, judicially noticeable information that Deripaska openly
associates himself with the Russian government.4 For the AP to do the same cannot be
defamatory, even if it were not true.
In yet another stretch regarding the first statement, possibly in an attempt to explain how
having a contract to further Russian interests might be defamatory, Deripaska argues that the
article “indicates that Deripaska’s business dealings implicate criminal activity related to
government corruption.” (Opp. at 24–25.) But the article makes no reference to government
corruption. Rather, it describes Manafort’s strategy memos as proposing that “Deripaska and
Putin would benefit from lobbying Western governments, especially the U.S., to allow oligarchs
to keep possession of formerly state-owned assets in Ukraine.” (Exh. A at 4.) Further, Manafort
“proposed building ‘long term relationships’ with Western journalists and a variety of measures
to improve recruitment, communications and financial planning by pro-Russian parties in the
region.” (Id.) None of this is defamatory to Deripaska. Defamation is not made up of hints and
suggestions and it cannot be merely unpleasant or offensive. Cf. Milkovich, 497 U.S. at 21(noting that “loose, figurative, or hyperbolic language . . . would negate the impression that the
4
See, e.g., Mark Ames & Ari Berman, McCain’s Kremlin Ties, The Nation (Oct. 1, 2008),
https://www.thenation.com/article/mccains-kremlin-ties/.
15
writer was seriously maintaining that petitioner committed the crime”). Thus, even if the article
falsely states that Deripaska and Manafort had a contract to promote Russian interests, as the
Court assumes here, that statement fails to convey any defamatory meaning.
III. STATEMENT 2
Deripaska argues that two sentences comprise the second statement: 1) “Republican Sen.
Lindsey Graham of South Carolina, a frequent Trump critic, said of Manafort: ‘Clearly, if he’s
getting millions of dollars from a billionaire close to Putin, to basically undermine democratic
movements, that’s something I’d want to know about’” (Opp. at 10); and 2) “Democrats on the
House intelligence committee said the new revelations will feature in their investigations.” (Id.)
The AP responds that these statements are “subjective assessments . . . not capable of being
proven true or false” (Reply at 8), and even if they “could reasonably be interpreted as making an
actionable allegation of wrongdoing, AP’s neutral reporting of those allegations is itself
protected from liability under the First Amendment.” (Mot. Dismiss at 22–23.)
Determining whether an utterance is fact or opinion requires viewing the “totality of the
circumstances” with four specific factors in mind: “(1) the specific language used; (2) whether
the statement is verifiable; (3) the general context of the statement; and (4) the broader context in
which the statement appeared.” Milkovich, 497 U.S. at 9; see also Ollman v. Evans, 750 F.2d
970, 982 (D.C. Cir. 1984) (noting that “the distinction between fact and opinion can . . . be made
only in context”).
First, the Graham quote begins with a conditional “if,” suggesting anything but certainty.
Second, to attach meaning to the use of the present tense when a Senator is interacting with the
press is unreasonable. Third, Graham is speaking in reaction to information about Manafort’s
undisclosed business dealings with a Russian businessman, and not surprisingly, Graham says he
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would like to know more about what he’s hearing. This expresses a desire for more information,
rather than a statement “laden with factual content.” See Ollman, 750 F.2d at 981–82 (“An
obvious potential for quashing or muting First Amendment activity looms large when juries
attempt to assess the truth of a statement that admits of no method of verification.”). In addition,
the word “basically” preceding the phrase “undermine democratic movements” is a red flag that
Graham is using “loose” or “hyperbolic” language. See Letter Carriers v. Austin, 418 U.S. 264,
284–86 (1974) (explaining that the word “traitor” used to define a union “scab” could not form
the basis for a defamation action because it was used “in a loose, figurative sense” and was
“merely rhetorical hyperbole, a lusty and imaginative expression of the contempt felt by union
members”).
Deripaska does not actually dispute that Graham said what the AP reported in its article
nor does he dispute that “Democrats on the House intelligence committee said the new
revelations will feature in their investigations.” (Exh. A at 4.) Instead, he argues that “‘ordinary,
reasonable readers could read the [article]’ as asserting that Deripaska’s business deals are worth
investigating and may involve ‘undermin[ing] democratic movements.’” (Opp. at 21) (quoting
Competitive Enter. Inst. v. Mann, 150 A.3d 1213, 1245 (D.C. 2016)). But whether Deripaska’s
business deals are worth investigating is not a verifiable statement of fact. Guilford Transp.,
760 A.2d at 597 (A statement is not actionable “if it is plain that a speaker is expressing a
subjective view . . . rather than claiming to be in possession of objectively verifiable facts.”)
What Deripaska believes the quote material conveys cannot be verified as fact or falsehood.
IV. STATEMENT 3
Deripaska argues here that a series of sentences pulled from a section of the article
“[t]aken as a whole . . . are lies.” (Opp. at 11.) He claims the article implies that he was
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involved in the Trump campaign controversy and that his “ordinary business arrangement” with
Manafort lasted longer than it actually did, and that the characterization of his work with
Manafort to “advance the interests of the Russian government” is false. Id. Deripaska also
argues the article implies that he stole or helped Manafort steal assets from Ukraine or elsewhere.
Id. The AP responds that the article does not reasonably give rise to these implications and in
fact contradicts them at various points. (Reply at 10–11.)
“Defamation by implication ‘stems not from what is literally stated, but from what is
implied.’” Mar-Jac Poultry, Inc. v. Katz, 773 F. Supp. 3d 103, 115 (D.D.C. 2011) (quoting
White v. Fraternal Order of Police, 909 F.2d 512, 518 (D.C. Cir. 1990)). “[C]ourts must be
vigilant not to allow an implied defamatory meaning to be manufactured from words not
reasonably capable of sustaining such meaning.” White, 909 F.2d at 519. But “[i]t is no defense
that the defendant did not actually intend to convey the defamatory meaning, so long as the
defamatory interpretation is a reasonable one.” Id.; see also Restatement (Second) of Torts § 563
(1977). In White, the D.C. Circuit analyzed three defamation-by-implication cases and
concluded that “if a communication, viewed in its entire context, merely conveys materially true
facts from which a defamatory inference can reasonably be drawn, the libel is not established.”
Id. at 520. If “the particular manner or language” used “supplies additional, affirmative evidence
suggesting that the defendant intends or endorses the defamatory inference,” only then will the
communication “be deemed capable of bearing that meaning.” Id.
The article cannot be read to suggest that Deripaska is personally involved in the Trump
campaign controversy or is accused of stealing Ukrainian assets.5 The article must be read as a
5
Deripaska also argues that the separate online video that the AP published on March 22, 2017,
“is a tacit admission by the AP that a reasonable reader would conclude from the Article that
Deripaska had hired Manafort to subvert democratic movements” because “if not, there would be
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whole, not through the selective lens that Deripaska presents. White, 909 F.2d at 526 (“[A] court
must examine the entire context of a publication.”). Read as a whole, although the article jumps
backwards and forwards in time with respect especially to Deripaska, it specifically includes
facts that negate the implications that Deripaska conjures up. For example, early on, the article
quotes an official representative of Deripaska indicating that his contract with Manafort related
to investment consulting services “which now is a subject to legal claims.” (Exh. A at 2.) Later
the article notes that “federal criminal prosecutors became interested in Manafort’s activities
years ago as part of a broad investigation to recover stolen Ukraine assets after the ouster of pro-
Russian President Viktor Yanukovych there in early 2014,” which is immediately followed by
the statement that no “U.S. criminal charges have ever been filed in the case.” (Id. at 3.) The
article also states that Deripaska was never mentioned “during the hearing of the House
intelligence committee,” where Manafort was mentioned 28 times “mostly about his work in
Ukraine.” (Id.) Later, in discussing the relationship with Manafort, the article explains “people
familiar with the relationship said money transfers to Manafort amounted to tens of millions of
dollars and continued through at least 2009.” (Id. at 4.) Toward the end, the article states that
“Manafort’s work with Deripaska continued for years, though they had a falling out laid bare in
2014 in a Cayman Islands bankruptcy court.” (id. at 5.) While this information is spread
no reason to post a video expressly disavowing that implication.” (Opp. Mot. Dismiss at 11.)
This logic is befuddling. It is far more likely that the AP published an online video that it
understood to be consistent with the article it published on the same day on the same topic.
Although the AP does not argue that the Court should consider the video as providing
even greater context for the article, the Court does note that this Circuit has reflected on “the
impact of visual effects,” because “the television medium offers the publisher the opportunity,
through visual presentation, to emphasize certain segments in ways that cannot be ascertained
from a mere reading of the transcript.” White, 909 F.2d at 526 (quoting S. Air Transp., 877 F.2d
at 1015)). In this case, the video appears to emphasize precisely what Deripaska would request
that it emphasize. (See Exh. B.)
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throughout the article, all of it is there, making it impossible to find the implications that
Deripaska insists are present. Accordingly, the third statement cannot convey any actionable
defamatory meaning.
V. THE ARTICLE AS A WHOLE
The AP argues that Deripaska “cannot state a free-floating claim for defamation
unmoored to specific false, defamatory statements” (Reply at 11), because a plaintiff must “plead
the defamatory statements with particularity.” (Mot. Dismiss at 26 (quoting Caudle v.
Thomason, 942 F. Supp. 635, 638 (D.D.C. 1980).) Deripaska argues that the article “as a whole
is defamatory because its essential message is that two private emissaries of Presidents Trump
and Putin entered into an agreement to undermine governments of elected leaders.” (Opp. at 2.)
But Deripaska’s complaint fails to identify any single statement as false that is both capable of
verification and capable of defamatory meaning. Reformulating his arguments to infer
defamatory meaning from the article as a whole does not cure this deficiency and so the Court
must dismiss the complaint as a matter of law.
“In a libel case, it is the role of the court to determine whether the challenged statement is
‘capable of bearing a particular meaning’ and whether ‘that meaning is defamatory.’ In making
this determination, a court is to consider both the words themselves and the entire context in
which the statement occurs.” Tavoulareas, 817 F.2d at 779.
Deripaska characterizes the article as accusing him of being “jointly engaged in efforts to
advance the Kremlin’s anti-democratic agenda.” (Opp. at 9.) But the article makes no such
statement. The only statement that comes close is the indeterminately-phrased quote from
Graham, discussed above. Deripaska has cherry-picked sentences and strung them together to
give the AP’s article an effect it does not have when read in full. But whole context is how
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courts determine whether there is defamation. See Tavoulareas, 817 F.2d at 779. And, for the
reasons discussed in Section II, supra, Deripaska cannot argue that merely being associated with
the interests of the Russian government is defamatory, even if it is false in the case of his
contract with Manafort. Accordingly, the Court must dismiss Deripaska’s complaint with
prejudice because the statements in his complaint do not qualify as false and defamatory
statements under D.C. law. See Abbas, 783 F.3d at 1340.
CONCLUSION
The complaint is dismissed with prejudice for failure to state a claim upon which relief
can be granted. A separate Memorandum Opinion, ECF No. 14, denying the AP’s special
motion to dismiss accompanies this Memorandum Opinion.
/s/ Ellen Segal Huvelle
ELLEN SEGAL HUVELLE
United States District Judge
Date: October 17, 2017
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