DocketNumber: Civil Action No. 17–00913 (ESH)
Citation Numbers: 282 F. Supp. 3d 133
Judges: Huvelle
Filed Date: 10/17/2017
Status: Precedential
Modified Date: 7/25/2022
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,
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"
*139and "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 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 *140Manafort'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 ,
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 ,
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 *141amounted 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. ,
Actionable statements must be both false and defamatory. Rosen v. Am. Israel Pub. Affairs Comm., Inc. ,
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 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.
Whether a plaintiff is a limited-purpose public figure is "a matter of law for the court to decide." Tavoulareas v. Piro ,
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. ,
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 ,
*143As 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,
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."
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 ,
In Lohrenz v. Donnelly ,
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 ,
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 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. ,
*145(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. ,
In addition, the D.C. Circuit in Abbas v. Foreign Policy Group, LLC ,
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 literally true"-and Deripaska does not allege that most of the facts recited above are false
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 ,
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.
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 ,
*147III. 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 ,
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 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 ,
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 ,
IV. STATEMENT 3
Deripaska argues here that a series of sentences pulled from a section of the article *148"[t]aken as a whole ... are lies." (Opp. at 11.) He claims the article implies that he was 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.
"Defamation by implication 'stems not from what is literally stated, but from what is implied.' " Mar-Jac Poultry, Inc. v. Katz ,
The article cannot be read to suggest that Deripaska is personally involved in the Trump campaign controversy or is accused of stealing Ukrainian assets.
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 ,
"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 ,
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 courts determine whether there is defamation. See Tavoulareas ,
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.
The parties do not dispute that substantive D.C. law applies in this diversity case. See, e.g. , Weyrich ,
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.
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.
See, e.g. , Mark Ames & Ari Berman, McCain's Kremlin Ties , The Nation (Oct. 1, 2008), https://www.thenation.com/article/mccains-kremlin-ties/.
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 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 ,