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Jankovic v. International Crisis Group

United States District Court, D. Columbia.

November 4, 2014

MILAN JANKOVIC, Plaintiff,
v.
INTERNATIONAL CRISIS GROUP, Defendant

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For MILAN JANKOVIC, also known as PHILIP ZEPTER, FIELDPOINT B.V., UNITED BUSINESS ACTIVITIES HOLDING A.G., Plaintiffs: Rodney A. Smolla, LEAD ATTORNEY, PRO HAC VICE, FURMAN UNIVERSITY, Greenville, SC; Caroline H. Mankey, CHRISTENSEN MILLER FINK JACOBS GLASER WEIL & SHAPIRO, LLP, Los Angeles, CA; Ivana Ognjanovic, Peter C. Sheridan, GLASER WEIL FINK JACOBS HOWARD AVCHEN & SHAPIRO, LLP, Los Angeles, CA; Joaquin Ezcurra, PRO HAC VICE, Malcolm I. Lewin, MORRISON COHEN LLP, New York, NY; John William Lomas, Jr., William T. O'Brien, MCKENNA LONG & ALDRIDGE LLP, Washington, DC; Lisa Norrett Himes, MCKENNA LONG & ALDRIDGE, LLP, Washington, DC.

For INTERNATIONAL CRISIS GROUP, A Non-profit Organization, Defendant: Michael Dennis Sullivan, Thomas Curley, LEAD ATTORNEYS, LEVINE SULLIVAN KOCH & SCHULZ, LLP, Washington, DC; Amy Lynn Neuhardt, BOIES, SCHILLER & FLEXNER, LLP, Washington, DC; Andrea Ernst, Anna Tevini, Jonathan Richard DeFosse, PRO HAC VICE, Jonathan L. Greenblatt, SHEARMAN & STERLING, LLP, Washington, DC; Neil H. Koslowe, SHEARMAN AND STERLING LLP, Washington, DC; Philip Urofsky, SHEARMAN & STERLING, Washington, DC.

For JAMES LYON, Individual, Defendant: Jonathan L. Greenblatt, SHEARMAN & STERLING, LLP, Washington, DC.

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MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge.

The plaintiff, Milan Jankovic, also known as Philip Zepter, brings this action to recover damages for injuries allegedly caused by a defamatory publication circulated by the defendant, the International Crisis Group. There are several motions currently pending before the Court: (1) Plaintiff Philip Zepter's Motion for Partial Summary Judgment Affirming His Status as a Private Figure (" Pl.'s Private Figure Mot." ); (2) Plaintiff Philip Zepter's Motion for Partial Summary Judgment Affirming the Falsity of [International Crisis Group]'s Defamatory Statements (" Pl.'s Falsity Mot." ); (3) Motion for Summary Judgment of Defendant International Crisis Group (" Def.'s Summ. J. Mot." ); (4) Defendant International Crisis Group's Motion to Strike [the] Plaintiff's Hearsay Declarations (" Def.'s Strike Mot." ); and (5) Plaintiff Philip Zepter's Motion to Strike the 2003 Expense Receipts of James Lyon (" Pl.'s Strike Mot." ). Upon careful consideration of the parties' submissions,[1] the Court will deny the plaintiff's motion for partial summary judgment affirming his status as a private figure, deny the plaintiff's motion for partial summary judgment affirming the falsity of International Crisis Group's defamatory statements as moot, grant summary judgment for the defendant, grant the defendant's motion to strike the plaintiff's hearsay declarations, and deny the plaintiff's motion to strike the expense receipts as moot.

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I. STANDARD OF REVIEW

A motion for summary judgment must be granted " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law," based upon the depositions, affidavits, and other factual materials in the record. Fed.R.Civ.P. 56(a), (c). A fact is " material" if it " might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). And " a dispute over a material fact is 'genuine' if 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Arrington v. United States, 473 F.3d 329, 333, 374 U.S.App.D.C. 189 (D.C. Cir. 2006) (quoting Anderson, 477 U.S. at 247). The moving party bears the initial burden of showing the absence of a disputed material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If this burden is satisfied by the moving party, the burden then shifts to the opposing party to " set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 248. " Although summary judgment is not the occasion for the court to weigh credibility or evidence, summary judgment is appropriate 'if the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Talavera v. Shah, 638 F.3d 303, 308, 395 U.S.App.D.C. 7 (D.C. Cir. 2011) (citations omitted) (quoting Holcomb v. Powell, 433 F.3d 889, 895, 369 U.S.App.D.C. 122 (D.C. Cir. 2006)). " [T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a [reasonable] jury to return a verdict for that party." Anderson, 477 U.S. at 249. In making this assessment, " [t]he evidence is to be viewed in the light most favorable to the nonmoving party and the court must draw all reasonable inferences in favor of the nonmoving party." Talavera, 638 F.3d at 308 (citing Anderson, 477 U.S. at 255). These inferences, however, must be " justifiable." Anderson, 477 U.S. at 255.

II. BACKGROUND

At the outset, the Court notes that the plaintiff has made it difficult to discern which purported material facts are in dispute.[2] See generally ECF No. 158-2, Plaintiff Philip Zepter's Statement of Genuine Issues of Material Facts in Opposition to Defendant [International Crisis Group]'s Motion for Summary Judgment (" Material Facts I" ) (disputing the defendant's proffered undisputed material facts). In response to many of the allegedly undisputed facts proffered by the defendant, the plaintiff raises a garden variety of objections that do not genuinely dispute the truth of the undisputed facts asserted by the defendant. For example, the plaintiff merely cites case law, therefore making only legal arguments in many of its responses to the defendant's undisputed facts. But legal arguments alone are insufficient to create a factual dispute to defeat a motion for summary judgment. See Glass v. Lahood, 786 F.Supp.2d 189, 199 (D.D.C. 2011) (" legal memoranda are not evidence and cannot themselves create a factual dispute sufficient to defeat a motion for summary judgment" ), aff'd, 2011 WL 6759550 (D.C. Cir. Dec. 8, 2011); see also Conservation Force v. Salazar, 715 F.Supp.2d 99, 106 n.9 (D.D.C. 2010)

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(" arguments of counsel . . . are not evidence" (internal quotations and citations omitted)).

The plaintiff also repeatedly uses qualifiers that do not genuinely dispute the truth of the allegedly undisputed facts set forth by the defendant. Thus, when the defendant cites Serbian press articles from the record as the evidentiary basis for its undisputed facts, the plaintiff merely disputes those facts " to the extent they rely on an article from the Serbian press which [the defendant] described as 'sensationalist bordering on libel' and 'notorious for spreading [rumors] and outright lies.'" E.g., ECF No. 158-2, Material Facts I ¶ 145 (quoting Pl.'s Private Figure Mot., ECF No. 145-4, Exhibit (" Ex." ) 12 (July 2003 International Crisis Group Report Entitled " Serbian Reform Stalls Again" (" Report 145" )) at 9-10). However, Report 145 does not reasonably suggest that these characterizations are attributable to all publications of the Serbian press in the relevant timeframe. See Pl.'s Private Figure Mot., ECF No. 145-4, Ex. 12 (Report 145) at 9-10. Indeed, the primary researcher and author of Report 145 recognized that the accuracy of the Serbian press articles had to be assessed on a " case-by-case basis." Def.'s Summ. J. Mot., ECF No. 150-1, Ex. 16 (Deposition of James Lyon, Ph.D. (" Lyon Dep." )) at 22:6-15. Thus, where the plaintiff does not specifically dispute the facts from a particular Serbian press article by citing to evidence from the record, these facts remain uncontroverted.[3] See Local Civ. R. 7(h); see also Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 153, 322 U.S.App.D.C. 35 (D.C. Cir. 1996) (placing " burden on the parties to focus the court's attention on the salient factual issues in what otherwise may amount to a mountain of exhibits and other materials" ).

Alternatively, when the defendant cites Serbian press articles as the evidentiary basis for its undisputed facts, the plaintiff sometimes merely disputes those facts " to the extent they rely on a news article which is hearsay." [4] E.g., ECF No. 158-2, Material Facts I ¶ 145. This objection is without merit under controlling precedent, as the defendant cites these articles for purposes other than the truth of the matter asserted. See Def.'s Summ. J. Reply, ECF No. 163-21, Response of Defendant [International Crisis Group] to Plaintiff Philip Zepter's Statement of Genuine Issues of Material Fact and His Response to [International Crisis Group]'s Statement of Undisputed Material Facts (" Resp. to Material Facts I" ) at 6-8. First, the articles assist the Court in identifying a public controversy, Waldbaum v. Fairchild Publ'ns, Inc., 627 F.2d 1287, 1297, 201 U.S.App.D.C. 301 (D.C. Cir. 1980) (" The court can see if the press was covering the debate, reporting what people were saying and uncovering facts and theories to help the public formulate some judgment. It should ask whether a reasonable person would have expected persons beyond the immediate participants in the dispute to feel the impact of its resolution. If the issue was

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being debated publicly and if it had foreseeable and substantial ramifications for nonparticipants, it was a public controversy." (internal footnotes omitted)). And second, they aid the Court in determining the plaintiff's role, if any, in that public controversy. Id. (" The plaintiff either must have been purposely trying to influence the outcome or could realistically have been expected, because of his position in the controversy, to have an impact on its resolution. In undertaking this analysis, a court can look to the plaintiff's past conduct, the extent of press coverage, and the public reaction to his conduct and statements." ).[5]

The plaintiff also objects to the defendant's proffered undisputed facts that rely on reports from the defendant's experts on hearsay grounds.[6] E.g., ECF No. 158-2, Material Facts I ¶ 24. But expert reports are an exception to the rule against hearsay in the summary judgment context. See Fed.R.Evid. 802 advisory committee's note (listing " Rule 56: affidavits in summary judgment proceedings" as an exception to prohibition against hearsay). The Court, therefore, can and will consider expert reports in resolving the parties' summary judgment motions, provided that the expert has " personal knowledge," " set[s] out facts that would be admissible in evidence," and " show[s] that [he or she] is competent to testify on the matters stated." [7] Fed.R.Civ.P. 56(c)(4)); see also Lohrenz v. Donnelly, 223 F.Supp.2d 25, 37 (D.D.C. 2002), aff'd, 350 F.3d 1272, 358 U.S.App.D.C. 425 (D.C. Cir. 2003) (considering expert report in defamation case on summary judgment).

Finally, in those instances where the plaintiff deems many of the defendant's purported undisputed facts as " immaterial," the Court will treat those facts as conceded, as this response does not raise a genuine issue of material fact.[8] See Herrion v. Children's Hosp. Nat'l Med. Ctr., 786 F.Supp.2d 359, 362 (D.D.C. 2011) (" irrelevant and immaterial" challenges are " patently insufficient to controvert the truth of the matters identified" ), aff'd, 448 F.App'x 71 (D.C. Cir. 2011). In sum, because the aforementioned challenges do not controvert the truth of the defendant's proffered undisputed facts, the Court will treat those undisputed facts as admitted. See Local Civ. R. 7(h) (" In determining a motion for summary judgment, the [C]ourt may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion." ).

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Against this backdrop, the Court finds that the following facts are undisputed.

A. Factual Background

1. The Parties

The plaintiff " was born in a small Serbian town and grew up in Bosnia." ECF No. 157-1, Defendant International Crisis Group's Response to [the] Plaintiff's Statement of Undisputed Material Facts (" Material Facts II" ) ¶ 1. After college, he " established the Zepter Company, . . . a cookware company[.]" Id. ¶ 2. After the formation of his company, the plaintiff " achieved business success throughout Europe." Id. ¶ 4. The plaintiff's products can be found in more than forty countries. See id. ¶ 5.

The defendant " is a non-profit organization founded in 1995 to help anticipate, prevent, and resolve deadly conflicts around the world." ECF No. 158-2, Material Facts I ¶ 4. In the early-to-mid 2000s, it " focused significant efforts" on the Balkans. Id. ¶ 6. In that regard, the defendant regularly publishes analytical reports intended to influence policymakers around the world. Id. ¶ 9.

2. The Serbian Government During the Relevant Timeframe

In 1999, Serbia was marred by civil conflict as its President, Slobodan Milosevic, carried out violence in Kosovo--a province in Serbia. See id. ¶ 31. Milosevic's actions in Kosovo resulted in military intervention by the North Atlantic Treaty Organization (" NATO" ), as well as economic sanctions by the United States and European countries. See id. In 2000, Milosevic lost a democratic election to Vojislav Kostunica, see id. ¶ 32, and following Milosevic's ouster from power in Serbia, " there was a public discussion in Serbia about the direction and extent of political, economic, and social reforms," id. ¶ 161. " The topic was a mainstay of public debate and discussion in the media, on television, in diverse social and political circles, and on the streets of Serbia." Id. (internal quotations omitted); see also id. ¶ 37 (" When Milosevic fell at the end of 2000 for a number of years, there was a constant policy debate in the wider international community, and . . . within the [International] Crisis Group, about what was really going on in Serbia, [including whether Serbia] . . . was . . . really reforming [and] moving away from the Milosevic period" (internal quotations and alterations omitted)). Despite Kostunica's victory over Milosevic, " political power was vested in the newly elected Serbian parliament and its [P]rime [M]inister, Zoran Djindjic." Id. ¶ 33. Kostunica and Djindjic would eventually become political rivals, with Djindjic " taking charge of the crucial levers of government in Serbia." Id. ¶ 34; see also id. ¶ 164 (" The future of Serbian reforms was of international concern, and prominent news publications regularly covered the issue." ). " Djindjic was a reformist who favored sweeping change from the policies implemented by . . . Milosevic," but " Djindjic's political rivals, such as . . . Kostunica, advocated a policy of continuity." Id. ¶ 162. In 2001, Djindjic extradited Milosevic to The Hague, Netherlands, to stand trial for war crimes. Id. ¶ 35. Djindjic was assassinated in 2003. Id.

3. Press Coverage of Post-Milosevic Serbia[9]

a. Press Reports About Djindjic

After Milosevic was removed from power, " [t]here was intense interest in the

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international community and in the region as to whether Djindjic was committed to democratic reform and at what pace." Id. ¶ 34. Specifically, Western nations viewed Serbia as the " key to regional stability" in the Balkans. Id. The international community harbored some doubt as to whether Djindjic could reform Serbia and govern it differently than Milosevic. See Def.'s Summ. J. Mot., ECF No. 151-9, Ex. 31 (January 2001 Economist Article Entitled " Zoran Djindjic, Serbia's [O]ther [B]ig [M]an" (" January 2001 Economist Article" ) at 2 (" One of Serbia's leading columnists, by no means a fan of Mr[.] Milosevic, calls Mr[.] Djindjic 'Little Slobo[,'] implying that he has the same dictatorial tendencies." ); id. (" Years of sanctions and decades of communism have stunted the economy, and corruption is rife. If foreigners are to invest, the judiciary must be cleaned up, and the criminals who ran the show under Mr[.] Milosevic must be dealt with. Many well-wishers fear that Mr[.] Djindjic, who is far from monkish himself, may not be inclined to take them on." ); id. at 3 (" Moreover, skeptics in Belgrade think [Djindjic] has already been too cosy with Mr[.] Milosevic's old crime-connected security-service types. . . . Mr[.] Djindjic has to be tough and shrewd. He also needs conciliatory skills--and integrity. He has the first two qualities in abundance. Whether he has the other two is worryingly less certain." ).

For example, the Serbian press reported that the changes that Djindjic was " trying to introduce" in Serbia were " purely cosmetic and aimed at allowing the financial elite created during the Milosevic regime--representatives of whom are allegedly his close friends--to keep its positions and power . . . ." See Def.'s Summ. J. Mot., ECF No. 151-10, Ex. 32 (January 2001 Reporter Article Entitled " You Just Watch Him" (" January 2001 Reporter Article" )) at 2. In particular, Djindjic's association with " business people" drew skepticism from the public. Def.'s Summ. J. Mot., ECF No. 152-4, Ex. 41 (August 2001 Financial Times Article Entitled " The Belgrade Connection" (" August 2001 Financial Times Article" )) at 1 (" Today, Djindjic is Prime Minister -- an international star. He has long been considered in the [W]est to be a guarantor of democracy in the Balkans. But behind this facade lurks a different, scarcely perceived side: Contradictions in which the Serbian government head has entangled himself, as well as contacts with business[]people that are classed as part of organized crime, cast dark shadows over the purported shining light. . . . [T]his top politician has become involved with people who undermine his credibility." ); see also id. at 2-3 (calling into question Djindjic's association with a " cigarette smuggler" ). The public viewed Djindjic as a politician with " many complicated business interests . . . and many Serbs saw him as an elegant kingpin turned politician." Def.'s Summ. J. Mot., ECF No. 153-21, Ex. 89 (March 2003 Article Entitled " The World: Murder in Belgrade; Did Serbia's Leader Do the West's Bidding Too Well" (" March 2003 Article" ) at 1; see also Def.'s Summ. J. Mot., ECF No. 152-5, Ex. 42 (August 2001 Vreme Article Entitled " Murder, Corruption and Political Games" (" August 2001 Vreme Article" )) at 3 (" It is understandable that . . . Djindjic's government with a European and reformist reputation does not like its standing being called into question." ); id. at 6 (" Kostunica's mention of corruption in the media is usually interpreted as an attack of Djindjic . . . ." (internal quotations omitted)); Def.'s Summ. J. Mot., ECF No. 152-8, Ex. 45 (August 2001 www.nzz.ch Article Entitled " Europe [W]ill [N]ot [W]ait [F]or [U]s" (" August 2001 www.nzz.ch Article" )) at 1 (" President Kostunica accuses the reformers of Serbian chief executive

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Djindjic of being interlinked with organized crime." ); Def.'s Summ. J. Mot., ECF No. 153-13, Ex. 81 (Article From www.milovanbrkic.com Entitled " Birth of the Serbian Godfather" (" www.milovanbrkic.com Article" )) at 4 (" The Serbian Prime Minister does not hide his strong ties to the underground. Asked if it is true that he has ties to criminals, Prime Minister Djindjic in his interview for Sunday Telegraph . . . confirms that is correct that he comes from that milieu." ).

b. Press Reports About the Plaintiff

During the time period discussed above, the press also wrote articles about the plaintiff. See ECF No. 158-2, Material Facts I ¶ 77. His political views, as well as his political activities, were reported by the press. See Def.'s Summ. J. Mot., ECF No. 154-10, Ex. 113 (September 2003 Article Entitled " I am [B]eing [A]ttacked in Serbia for [H]elping Djindjic" (" September 2003 Article" )) at 1 (" Several sources in Belgrade confirmed for 'Nacional' that [the plaintiff] came under fire of . . . favorites of the past regime who cannot forgive him for helping the opposition in overthrowing Slobodan Milosevic . . . ." ); Def.'s Summ. J. Mot., ECF No. 148-3, Ex. A (2001 Article Entitled " Bosnian Serb [P]arty [S]ays Serb [E]ntity [R]uled [B]y [P]rivate [B]usinessman" (" 2001 Businessman Article" )) at 1 (" The chairman of the executive committee of the Serbian Radical Party SRS in the Bosnian Serb Republic,[10] Mirko Blagojevic, said today that [the plaintiff] was 'at the helm of the Serb Republic' because 'he donated a large amount of money to Prime Minister Mladen Ivanic's election campaign, and in return asked that his aide, Milenko Vracar, be appointed finance minister[.']" ); Def.'s Summ. J. Mot., ECF No. 151-3, Ex. 25 (1998 Article Interviewing Zepter Entitled " The Time of Wisdom Has Come" (" 1998 Interview" )) at 2 (" [T]he Serbian Republic have a sincere friend in [the plaintiff] . . . . The time has come when this country must finally be led by wisdom rather than by feelings. It must act in a calculated manner, wisely, and with selected allies in every respect, i.e., political, national and economic. . . . I am convinced that the Serbian Republic is facing an economic transformation. I feel that the way of thinking which has become deeply rooted in most of the government is changing. To put it simply, you must get used to fostering the principles that have created civilization and its greatest achievement are democracy and the market economy. . . . In conclusion, politics is always responsible or should be for what happens to us." ); Def.'s Summ. J. Mot., ECF No. 151-5, Ex. 27 (Article Entitled " How Milan Jankovic Became Philip Zepter" (" How Jankovic Became Zepter" )) at 18 (recognizing that the plaintiff " became politically engaged" two years before article was published).

Through the press, the plaintiff publicly expressed his desire to " enter [the] political arena" in Serbia. Def.'s Summ. J. Mot., ECF No. 152-27, Ex. 64 (December 2001 Glas Javnosti Article) at 4 (" I want to help Serbia. . . . When in a few years, I enter political arena, I will enter to win." ); see also Def.'s Summ. J. Mot., ECF No. 152-28, Ex. 65 (December Ekonomija 2001) at 1 (" According to his own words, [the plaintiff] is not a shadow ruler of Serbia[,] but a man who wishes to contribute to the victory of democracy, law, and action, over inaction and anarchy." ).

The plaintiff used the press to voice his approval of Djindjic's political agenda for the future of Serbia. E.g., Def.'s Summ. J. Mot., ECF No. 152-27, Ex. 64 (December

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2001 Glas Javnosti Article) at 2 (" I have helped, in many ways, . . . opposition activists and activities in Serbia. That is why I was not favored by the former regime (the fact for which I am, of course, proud) . . . .); id. at 3 (" The fact that at the time of Milosevic's reign of terror, Mr. Djindjic was the fiercest and most consistent defendant of the honor and dignity of the Serbian people in the Western media has been consistently hidden from our country's public eye . . . The people with good (political) taste should be impressed by this. . . . That is why, at the time of the darkest Milosevic's dictatorship, I publicly stated in an interview for the magazine 'Profil' that I am most impressed by Djindjic among all the politicians on the Serbian political scene, and I can repeat that today as well . . . . I will support, to the horror of my 'critics[,'] not only the current Prime Minister, but also all those for whom I believe that they can bring prosperity to my country and my people." ); Def.'s Summ. J. Mot., ECF No. 148-3, Ex. A (June 2001 Blic News Article Entitled " [Djindjic]'s Promotion in USA is Financed by Zepter" (" June 2001 Blic News Article" )) at 44 (quoting the plaintiff as stating: " In the polluted political life in Serbia everyone is striving to become the new Milosevic and to rule as he did . . . . However, I do see a glimpse of bright light in the general hopelessness. Zoran [Djindjic] is certainly one of them." ).

And as reported by the press, the plaintiff's approval translated into political and financial support for Djindjic. See, e.g., Def.'s Summ. J. Mot., ECF No. 154-10, Ex. 113 (September 2003 Article) at 4 (interview of the plaintiff wherein he acknowledged that he " made many enemies by helping Zoran [Djindjic] come to power, for being his close friend" ); Def.'s Summ. J. Mot., ECF No. 152-30, Ex. 67 (January 2002 Article Entitled " Seller of Empty Pots" (" January 2002 Article" )) at 2 (characterizing the plaintiff as someone who " declares himself a supporter of the Prime Minister's politics" ); Def.'s Summ. J. Mot., ECF 151-12, Ex. 34 (June 2001 Article From www.spo.org Archives (" June 2001 SPO Article" )) at 1 (referring to " [the plaintiff] . . . []as the financier of the Democratic Party" ); Def.'s Summ. J. Mot., ECF No. 153-13, Ex. 81 (www.milovanbrkic.com Article) at 15 (" [The plaintiff], also invested more than ten million dollars in the Democratic Party and Mr. Djindjic personally." ); Def.'s Summ. J. Mot., ECF No. 148-3, Ex. A (June 2001 Politika Article), at 31 (" [The plaintiff] has been talked about for years as one of the main financiers of the former Serbian opposition, primarily of Zoran Djindjic and the Democratic Party." ).

Specifically, the plaintiff's financial support of Djindjic included helping Djindjic retain the services of a United States lobbyist named James Denton to represent Serbian interests in this country. See, e.g., ECF No. 158-2, Material Facts I ¶ 81 (" [The plaintiff] agreed to pay for the services of James Denton." ); see also Def.'s Summ. J. Mot., ECF No. 154-10, Ex. 113 (September 2003 Article) at 4 (" I was helping [Djindjic] . . . by mostly giving advice, but in other ways too, primarily by paying a company that was lobbying for the opposition in the USA at the time. That way I wanted to present a new Serbia in the USA, so Washington can recognize the new democratic alternative, to show that Serbia is not what Milosevic had created it to be . . . ." ); Def.'s Summ. J. Mot., ECF No. 153-24, Ex. 92 (July 2003 Article Entitled " Zepter was Paying the Serbian Government's Lobbyists" (" July 2003 Article" )) at 1 (reporting that the plaintiff was paying " $120,000 dollars a year, as well as traveling expenses," for James Denton to " perform[] public relations work for the Serbian [g]overnment in the United States

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aimed at establishing a friendly and constructive relationship between the two countries" (internal quotations omitted)); Def.'s Summ. J. Mot., ECF No. 153-16, Ex. 84 (February 2002 Article Entitled " Who [A]re the [R]ich [B]usinessmen [W]ho [F]inance Serbian [P]arties?" (" February 2002 Article" ) at 10 (reporting that the plaintiff " has been mentioned" as the individual who would " pa[y] for" the $120,000 service fee in the agreement " between the president of the Serbian government Zoran [Djindjic] and an independent American consultant James Denton" ); Def.'s Summ. J. Mot., ECF No. 152-30, Ex. 67 (January 2002 Article) at 2-3 (" 'News' was the first (and the only one at that time) publication that published fax copies of documents which unambiguously confirmed that . . . [the plaintiff] was paying Jim Danton [sic] a lobbying fee on behalf of Zoran Djindjic. In his statement for 'News,' Jim Danton [sic] personally confirmed that, as well. There was nothing in dispute about that, except for the general question of whether Zoran Djindjic had some obligations toward [the plaintiff] because of that, and the fact that the deputies of the Serbian Assembly were not informed, as they should have been, about that arrangement." ); Def.'s Summ. J. Mot., ECF No. 148-3, Ex. A (December 2001 Article Entitled " And This is Serbia" (" December 2001 Article" )) at 84 (" They signed an agreement whereby the company 'Zepter' will pay two hundred thousand dollars per year for the promotion of the Prime Minister in the U.S. A fax copy of this agreement was published in the weekly magazine 'Blic News,' but none of the other media had the courage to transmit this article." ); Def.'s Summ. J. Mot., ECF No. 148-3, Ex. A (June 2001 Politika Article), at 31 (" For years he denied it and, even now after 'Blic News' revealed that [the plaintiff] will pay James Denton, an independent U.S. consultant, to lobby on behalf of Serbia in the United States, no one in Zepter International wanted to say a word about it." ); Def.'s Summ. J. Mot., ECF No. 148-3, Ex. A (June 2001 Blic News Article), at 41 (reporting on contract between Djindjic and lobbyist James Denton, where Denton was to " be engaged in public relations in the USA on behalf of the Serbian [g]overnment" and present Serbia as " a stable, forward-looking country, suitable for investment" ); id. (" Denton will work under the supervision of the Prime Minister [Djindjic] or his representative on renewing friendly relationships between the two countries, especially with the Administration of President Bush and the U.S. Congress, identifying and coordinating American programs of technical and economic assistance." (internal quotations omitted)). Further, the plaintiff also acknowledged to the press that he was an " adviser for international economic business affairs" for Prime Minister Djindjic. Def.'s Summ. J. Mot., ECF No. 154-10, Ex. 113 (September 2003 Article) at 4 (interview of the plaintiff wherein he recognized that " when [Djindjic] became Prime Minister, [the plaintiff became] his adviser for international economic business affairs" ).

And during Djindjic's tenure as prime minister, the press reported on the friendship between the plaintiff and Djindjic. See ECF No. 158-2, Material Facts I ¶ 137; Def.'s Summ. J. Mot., ECF No. 152-28, Ex. 65 (December 2001 Ekonomija Article Entitled " I Have Never Traded in Arms" (" December Ekonomija 2001" ) at 1 (" As far as his connections with Serbia's Prime Minister Zoran Djindjic are concerned, [the plaintiff] states that the two have known each other for a long time and that they are friends." ); Def.'s Summ. J. Mot., ECF No. 152-27, Ex. 64 (December 2001 Glas Javnosti Article Entitled " My Answer to Them" (" December 2001 Glas

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Javnosti Article" )) at 2 (the plaintiff stating that " I have known mister Djindjic for many years, and I still proudly say that we are friends. I believe in friendship." ); Def.'s Summ. J. Mot., ECF No. 148-3, Ex. A (December 2001 Article) at 84 (" [The plaintiff] is a close friend of Zoran Djindic's." )

Not only did their friendship " attract public attention," but the press also began to question whether the plaintiff was receiving preferential treatment from Djindjic's government. See Def.'s Summ. J. Mot., ECF No. 153-14, Ex. 82 (June 2002 Article Entitled " In Search of Money Origins" (" June 2002 Article" ) at 2 (inquiring about the allegation that " companies such as Zepter, . . . that are allegedly close to the regime, have been exempted from taxes, and it has attracted public attention" ); see also Material Facts I ¶ 172; Def.'s Summ. J. Mot., ECF No. 148-3, Ex. A (September 2001 Article 3 From www.spo.org Archives (" September 2001 SPO Article" )) at 13 (" Instead of subjecting [the plaintiff's] wealth and monopoly on all state affairs to investigation, the Mafia don Zoran Djindjic is giving him support for the suppression of opposition activity and critical thought in Serbia. . . . [The] Serbian Renewal Movement will . . . illuminate[] the character and deeds of [the plaintiff], organizer and patron of smuggling and crime in Serbia." ); Def.'s Summ. J. Mot., ECF 151-12, Ex. 34 (June 2001 SPO Article) at 1 (reporting that Djindjic " flew abroad free of charge by planes owned by [the plaintiff]" ); Def.'s Summ. J. Mot., ECF No. 148-3, Ex. A (December 2001 Article) at 84 (" In July of this year, Zoran Djindjic spent part of his vacation as [the plaintiff]'s guest in Monte Carlo." ). The public had come to believe that the plaintiff was " the most important financier of the Serbian Government" and that he was " the most important and most influential businessman in Serbia." Def.'s Summ. J. Mot., ECF No. 148-3, Ex. A (August 2001 Article Entitled " The Zepter State" (" August 2001 Article" )) at 51 (" [The plaintiff] has decided to conquer Serbia . . . in his own way. Namely, [the plaintiff] has become the most important financier of the Serbian Government: out of his own pocket, he is financing Jim Denton, an American lobbyist for Zoran Djindjic; he is paying the bills incurred by the Government abroad, [and] investing in the fallen Serbian economy. . . . Well-informed people even claim that [the plaintiff] has become the most important and most influential businessman in Serbia, and that his words count." ).

4. The Alleged Defamatory Passage

" In July 2003, [the International Crisis Group] published Report 145, entitled 'Serbian Reform Stalls Again' . . . in which [the International Crisis Group] offered its policy recommendations concerning the progress of political and economic reform in Serbia and the integration of Serbia into international institutions following the March 2003 assassination of Serbian Prime Minister Zoran Djindjic." ECF No. 157-1, Material Facts II ¶ 12. " The report was intended to address several subjects related to advancing peace and regional stability." ECF No. 158-2, Material Facts I ¶ 40. In particular, Report 145 addressed " the inability of the Serbian government to assert civilian control over Milosevic-era police, military and intelligence agencies," as well as continuing Serbian " concerns regarding the influence of wealthy businessmen on Serbia's fledgling democracy, businessmen commonly referred to as oligarchs or tycoons." Id. (internal quotations omitted)); see also ECF No. 157-1, Material Facts II ¶ ¶ 22, 24.

" James Lyon was the [International Crisis Group] employee who primarily researched and wrote [Report 145]." ECF

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No. 158-2, Material Facts I ¶ 18. Lyon " ha[d] studied and [wa]s familiar with the Balkans region," id. ¶ 20, " ha[ving] traveled, studied, and worked in the Balkans, including Serbia, for many years," id. ¶ 21. " He was the [International Crisis Group] project director for Serbia between 2000 through 2005, based in Belgrade." Id. " Lyon began working on [Report 145] in the [S]pring of 2003." Id. ¶ 40.

To gather information for Report 145, " Lyon conducted many interviews on the subject of the businessmen oligarchs." [11] Id. ¶ 64. He " communicated with officials in the Serbian . . . government, as well as with officials associated with the embassies and intelligence services of the NATO powers which had intervened militarily in Serbia." Id. ¶ 65. These " sources of information with respect to Report No. 145 . . . requested that their identities be kept confidential . . . ." Def.'s Summ. J. Mot., ECF No. 148-2, Declaration of Dr. James Lyon (" Lyon Decl." )) ¶ 49. Based on the interviews he conducted, Lyon concluded that " it was impossible during the Milosevic era to have amassed significant wealth without the sponsorship of, or direct assistance from, the regime or its security services." ECF No. 158-2, Material Facts I ¶ 66. And the plaintiff was allegedly one of these individuals. Def.'s Summ. J. Mot., ECF No. 148-2, Lyon Decl. ¶ ¶ 42-48; see also Def.'s Summ. J. Mot., ECF No. 148-3, Ex. A (September 2001 SPO Article) at 13 (" Financier of the Democratic Party, [the plaintiff], according to the writing of many domestic and foreign media a famous arms dealer, who is called to account by the Israeli government, a businessman who acquired enormous wealth in Serbia from unknown sources during Slobodan Milosevic's rule . . . ." ).

In addition to interviews with confidential sources, Lyon " also knew that [the plaintiff] had been the subject of various media reports because [he] had closely monitored the Balkan media for many years in the context of [his] work for [the International Crisis Group]." Def.'s Summ. J. Mot., ECF No. 148-2, Lyon Decl. ¶ 51; see also id. ¶ ¶ 53, 54 (explaining that he was aware of " publications charg[ing] that [the plaintiff]'s business improperly benefitted in various ways from his relationships with leading politicians" ).

Based on Lyon's knowledge and his research, the following excerpt from Report 145 (" challenged passage" ) was published:

The unwillingness to continue the crackdown reflects the power of the Milosevic-era financial structures that-with the rigid oversight once provided by the dictator removed-have transformed themselves into a new Serbian oligarchy that finances many of the leading political parties and has tremendous influence over government decisions. Some of the companies were originally formed as fronts by State Security or Army Counterintelligence

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(KOS), while others operated at the direct pleasure of the ruling couple. Under Milosevic, many of these companies profited from special informal monopolies, as well as the use of privileged exchange rates. In return, many of them financed the regime and its parallel structures.
Some of the individuals and companies are well known to average Serbs: Delta Holding (Milorad Miskovic), Karic (Bogoljub Karic), Pink (Zeljko Mitrovic), Zepter (Milan Jankovic, aka Filip Zepter), Kapital Banka (Djordje Nicovic), Toza Markovic (Dmitar Segrt), Progres (Mirko Marjanovic), Simpo (Dragan Tomic), Komercijalna Banka (Ljubomir Mihajlovic), Novokabel (Djordje Siradovic), Stanko Subotic, Dibek (Milan Beko), ABC (Radisav Rodic), Hemofarm (Miodrag Babic), AIK Banka Nis (Ljubisa Jovanovic) and Dijamant (Savo Knezevic) are but some of the most prominent. Because of the support they gave to Milosevic and the parallel structures that characterised his regime, many of these individuals or companies have at one time or another been on EU visa ban lists, while others have had their assets frozen in Europe or the US.80]
In the popular mind, they and their companies were associated with the Milosevic regime and benefited from it directly. The DOS campaign platform in September 2000 promised that crony companies and their owners would be forced to answer for past misdeeds. Few of the Milosevic crony companies have been subjected to legal action, however. The enforcement of the " extra-profit" law is often viewed as selective and there have been only a handful of instances in which back taxes, perhaps 65 million Euros worth, have been collected. Most disturbing is the public's perception that-at a time when the economy is worsening-these companies' positions of power, influence and access to public resources seem to have changed very little.

Jankovic v. Int'l Crisis Grp., 593 F.3d 22, 24, 389 U.S.App.D.C. 170 (D.C. Cir. 2010) (internal alterations and footnote omitted). Footnote 80 cites to two websites, which were non-functional. See id. at 26. Lyon believed that Report 145 was accurate when it was published. Material Facts I ¶ 101.[12]

The plaintiff was just " a small part" of Report 145. See ECF No. 158-2, Material Facts I ¶ 41. The defendant " never contacted [the plaintiff] for comment concerning the allegations or anything else in Report 145 before publishing Report 145." ECF No. 157-1, Material Facts II ¶ 20.

B. Procedural History

This Court granted the defendant's initial motion to dismiss all of the plaintiff's defamation, false light invasion of privacy, and tortious interference claims, concluding, inter alia, that the challenged passage was not capable of a defamatory meaning. Jankovic v. Int'l Crisis Grp., 429 F.Supp.2d 165, 178 (D.D.C. 2006) aff'd in part, rev'd in part and remanded, 494 F.3d 1080, 377 U.S.App.D.C. 434 (D.C. Cir. 2007). On appeal, the District of Columbia Circuit partially reversed this Court's ruling, finding that the challenged passage in Report 145 was susceptible of a defamatory meaning and that the plaintiff's claims should not have been dismissed. Jankovic v. Int'l Crisis Grp., 494 F.3d 1080, 1091, 1092, 377 U.S.App.D.C. 434 (D.C. Cir. 2007). Following the Circuit's remand, the defendant

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filed another motion to dismiss, arguing that the challenged passage was shielded by the fair report and fair comment privileges, as well as protected as an opinion, and that the tortious interference claim was inadequately pleaded. See Jankovic, 593 F.3d at 25. The District of Columbia Circuit affirmed this Court's dismissal of the tortious interference claim, but reversed this Court's dismissal of the plaintiff's defamation and false light invasion of privacy claims, concluding that " none of the privileges or protections raised" by the defendant applied to the assertion that the plaintiff supported and received benefits from the Milosevic regime. Id. at 26. In support of the Circuit's conclusion, it found that footnote 80 in the challenged passage of Report 145, which purportedly led readers of the report to an Office of Foreign Assets Control (" OFAC" ) website containing a 1998 frozen assets list and a 1998 Executive Order, id., did " [n]ot . . . suggest[] that . . . [the plaintiff], supported the Milosevic regime or received advantages in exchange," id. at 27 (emphasis in original).[13] The Circuit, therefore, again remanded the case to this Court for further " proceedings consistent with [its] opinion." Id. at 30.

The defendant now seeks summary judgment on the grounds that it is not liable for either the defamation or the false light invasion of privacy claims because the plaintiff is a public figure as a matter of law, and the plaintiff cannot show by clear and convincing evidence that the defendant acted with actual malice when it published the challenged passage of Report 145.[14]

III. Legal Analysis

A. Public Figure Analysis

First Amendment protection is afforded to defendants when the object of an alleged defamatory statement is about a public figure. New York Times v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). The issue of whether a plaintiff is a public figure is a question of law for the courts to determine. See Waldbaum, 627 F.2d at 1294 n.12. There are two types of public figures: (1) general public figures who maintain such status for all purposes and (2) limited-purpose public figures " '(who) voluntarily inject[] [themselves] or [are] drawn into a particular public controversy and therefore become[] . . . public figure[s] for a limited range of issues." ' Id. at 1292 (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 351, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974)). " A person becomes a general purpose public figure only if he or she is 'a well-known celebrity,' his name a 'household word.'" Tavoulareas v. Piro, 817 F.2d 762, 772, 260 U.S.App.D.C. 39 (D.C. Cir. 1987) (en banc) (citation omitted). " Few people," however, " attain the general notoriety that would make them public figures for all purposes." Waldbaum, 627 F.2d at 1296. Much more common are " public figures for the more limited purpose of certain issues or situations." Tavoulareas, 817 F.2d at 772. The defendant agrees that the plaintiff is not a general public figure. E.g., Private Figure Opp'n at 1. But the parties dispute whether the plaintiff is a limited-purpose public figure for a limited range of issues.

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The District of Columbia Circuit has formulated a three-prong test to determine whether an individual is a limited-purpose public figure. Lohrenz v. Donnelly, 350 F.3d 1272, 1279, 358 U.S.App.D.C. 425 (D.C. Cir. 2003) (citing Waldbaum, 627 F.2d at 1294). First, the Court must determine whether a public controversy existed. See Waldbaum, 627 F.2d at 1296. This assessment requires the Court to determine whether there was " a dispute that in fact ha[d] received public attention because its ramifications w[ould] be felt by persons who [we]re not direct participants." Id. at 1296. Second, the Court must analyze the plaintiff's role in the controversy. Id. at 1297. " Trivial or tangential participation is not enough. . . . [To be considered a limited[-]purpose public figure, a plaintiff] must have achieved a 'special prominence' in the debate." Id. To satisfy the " special prominence" requirement, " [t]he plaintiff either must have been purposely trying to influence the outcome or could realistically have been expected, because of his position in the controversy, to have an impact on its resolution." Id. Finally, the Court must assess whether the " alleged defamation [was] germane to the plaintiff's participation in the controversy." Id. at 1298. As applied here, the defendant has established that the plaintiff is a limited-purpose public figure as determined by Waldbaum's three-prong test.[15]

1. The Scope of the Public Controversy

The parties do not dispute the existence of a public controversy " concerning the progress of political and economic reform in Serbia and the integration of Serbia into international institutions." Pl.'s Private Figure Mot. at 5; Private Figure Opp'n at 4. Instead, they disagree as to the temporal scope of the public controversy. See Private Figure Reply at 5. According to the plaintiff, the scope of the public controversy is addressed by Report 145--" the post-Djindjic Serbian government's lack of progress in implementing political and economic reform and what that meant for Serbia's integration into the international community." Pl.'s Private Figure Mot. at 17 (emphasis in original); see also Summ. J. Opp'n at 8-9. But the defendant argues that the temporal scope of the public controversy is not so limited. See Private Figure Opp'n at 4-12; Def.'s Summ. J. Mot. at 16-24. The defendant concedes that Report 145 is relevant to the Court's task of identifying the proper temporal scope of the public controversy inquiry, but also argues that the Court must " look[] beyond the content" of Report 145 and evaluate the context in which Report 145 was published. Private Figure Opp'n at 4-5. Thus, the defendant contends that the proper temporal scope of the controversy is Serbian political and economic reform, and integration into international institutions, in the post-Milosevic Serbian government. Id. at 12.

The Court agrees with the defendant. In Waldbaum, the District of Columbia Circuit explained:

To determine whether a controversy indeed existed and, if so, to define its contours, the judge must examine whether persons actually were discussing some specific question. . . . The court can see if the press was covering the debate, reporting what people were saying and uncovering facts and theories

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to help the public formulate some judgment. It should ask whether a reasonable person would have expected persons beyond the immediate participants in the dispute to feel the impact of its resolution. If the issue was being debated publicly and if it had foreseeable and substantial ramifications for nonparticipants, it was a public controversy.

Waldbaum, 627 F.2d at 1297 (internal citations and footnotes omitted)).[16]

Here, a reasonable reading of Report 145 reveals that while it did emphasize economic and political reforms after the assassination of Djindjic, or the lack thereof, such reform was part of the " larger debate" concerning economic and political reforms in Serbia after the ouster of Milosevic from power in 2000. See Hatfill v. The New York Times Co., 532 F.3d 312, 322-23 (4th Cir. 2008); see also Tavoulareas, 817 F.2d at 767, 773 (identifying public controversy concerning how the United States' private oil industry " should respond to the rise of OPEC and the ensuing energy crisis" in the 1970s); OAO Alfa Bank v. Ctr. for Pub. Integrity, 387 F.Supp.2d 20, 43 (D.D.C. 2005) (isolating the public controversy as " [t]he rise of the oligarchs and the decline of the Russian economy into what one observer described as a 'criminal-syndicalist state' was one of the defining foreign policy controversies of the 1990s, and the topic of intense discussion in the media, classrooms, think tanks, and the government of the United States, as well as through the rest of the world" ). As the defendant correctly observes, Report 145 is replete with references to the political and economic climate in Serbia prior to Djindjic's assassination. See Private Figure Opp'n at 10-12. Indeed, it would be extremely difficult to understand " the post-Djindjic Serbian government's lack of progress in implementing political and economic reform and what that meant for Serbia's integration into the international community" discussed in Report 145, Pl.'s Private Figure Mot. at 17 (second emphasis added), if Report 145 did not compare the degree of progress to the status quo before Djindjic's assassination. Thus, the plaintiff's reading of Report 145 is too narrow.

Beyond Report 145, there was " regular[]" press attention given to the " specific question," Waldbaum, 627 F.2d at 1297, of whether Serbian political and economic reform could take place once Milosevic's reign ended, ECF No. 158-2, Material Facts I ¶ 164 (" The future of Serbian reforms was of international concern, and prominent news publications regularly covered the issue." ); ECF No. 151-9, Ex. 31 (January 2001 Economist Article) at 2 (" One of Serbia's leading columnists, by no means a fan of Mr[.] Milosevic, calls Mr[.] Djindjic 'Little Slobo[,'] implying that he has the same dictatorial tendencies." ); id. at 3 (" If foreigners are to invest, the judiciary must be cleaned up, and the criminals who ran the show under Mr[.] Milosevic must be dealt with. Many well-wishers fear that Mr[.] Djindjic, who is far from monkish himself, may not be inclined to take them on." ). And one aspect

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of that public debate included Djindjic's ability to institute meaningful reforms in the Serbian government, notwithstanding his questionable associations with " the financial elite." Def.'s Summ. J. Mot., ECF No. 151-10, Ex. 32 (January 2001 Reporter Article) at 2 (" [T]here's a wave of attacks against Djindjic as well: statements that the changes he's trying to introduce are purely cosmetic and aimed at following the financial elite created during the Milosevic regime -- representatives of whom are allegedly his close friends -- to keep its positions and power[.]" ). " The public plainly ha[d] a vital interest . . . in . . . the groups or factions supporting" Djindjic, as well as the " the quality of [his] . . . backers" because they do " play an influential role in ordering [Serbian] society." Thompson v. Evening Star Newspaper Co., 394 F.2d 774, 776, 129 U.S.App.D.C. 299 (D.C. Cir. 1968); see also Def.'s Summ. J. Mot., ECF No. 153-21, Ex. 89 (March 2003 Article) at 1 (" Mr. Djindjic himself had many complicated business interests . . . and many Serbs saw him as an elegant kingpin turned politician." ); Def.'s Summ. J. Mot., ECF No. 152-4, Ex. 41 (August 2001 Financial Times Article) at 1 (" Today, Djindjic is Prime Minister -- an international star. He has long been considered in the [W]est to be a guarantor of democracy in the Balkans. But behind this facade lurks a different, scarcely perceived side: Contradictions in which the Serbian government head has entangled himself, as well as contacts with businesspeople that are classed as part of organized crime, cast dark shadows over the purported shining light. . . . [T]his top politician has become involved with people who undermine his credibility." ). Accordingly, the Court finds that there was a public controversy about Serbian economic and political reform, as well as its integration into international institutions, after Milosevic lost power, when Report 145 was published.

2. The Plaintiff's Role in the Public Controversy

The plaintiff's participation in the public debate concerning economic and political reform in Serbia, and its integration into international institutions after Milosevic's downfall, was neither trivial nor tangential. The plaintiff reportedly assisted in the " overthrow[] of Slobodan Milosevic," Def.'s Summ. J. Mot., ECF No. 154-10, Ex. 113 (September 2003 Article) at 1 (" Several sources in Belgrade confirmed for 'Nacional' that [the plaintiff] came under fire of . . . favorites of the past regime who cannot forgive him for helping the opposition in overthrowing Slobodan Milosevic . . . ." ), which was the impetus for the public controversy the Court identified above, ECF No. 158-2, Material Facts I ¶ 164 (" The future of Serbian reforms was of international concern, and prominent news publications regularly covered the issue." ). During the relevant timeframe, the plaintiff publicly expressed his desire to enter the Serbian " political arena" [17] Def.'s Summ. J. Mot., ECF No. 152-27, Ex. 64 (December 2001 Glas Javnosti Article) at 4 (" I want to help Serbia. . . . When in a few years, I enter political arena, I will enter to win." ), so that he could " contribute to the victory of democracy," id. (" I do not govern Serbia, but I want to contribute to the victory of democracy, justice, and work over the lack of

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work and anarchy. It is true that, for a number of years, on a daily basis I have lobbied for prosperity and wellbeing of my country and my people." ); Def.'s Summ. J. Mot., ECF No. 152-28, Ex. 65 (December Ekonomija 2001) at 1 (same). And the plaintiff was a public and ardent supporter of Djindjic both politically and financially, see Def.'s Summ. J. Mot., ECF No. 152-27, Ex. 64 (December 2001 Glas Javnosti Article) at 3 (according to the article, the plaintiff stated: " The fact that at the time of Milosevic's reign of terror, Mr. Djindjic was the fiercest and most consistent defendant of the honor and dignity of the Serbian people in the Western media has been consistently hidden from our country's public eye . . . . The people with good (political) taste should be impressed by this. . . . That is why, at the time of the darkest Milosevic's dictatorship, I publicly stated in an interview for the magazine 'Profil' that I am most impressed by Djindjic among all the politicians on the Serbian political scene, and I can repeat that today as well . . . . I will support, to the horror of my 'critics[,'] not only the current Prime Minister, but also all those for whom I believe that they can bring prosperity to my country and my people." ); Def.'s Summ. J. Mot., ECF No. 148-3, Ex. A (June 2001 Politika Article) at 31 (" [The plaintiff] has been talked about for years as one of the main financiers of the former Serbian opposition, primarily of Zoran Djindjic and the Democratic Party." ), so much so that he " made many enemies," Def.'s Summ. J. Mot., ECF No. 154-10, Ex. 113 (September 2003 Article) at 4 (interview of the plaintiff wherein he acknowledged that he " made many enemies by helping Zoran [Djindjic] come to power, [and] for being his close friend" ).

At a minimum, the plaintiff attempted to influence or shape Serbia's political and economic direction while Djindjic was the Prime Minister of Serbia. Waldbaum, 627 F.2d at 1298 n.2 (" If in fact [the plaintiff] is shaping or trying to shape the outcome of a specific public controversy, he is a public figure for that controversy . . . ." ). He, along with Djindjic, sought to improve diplomatic relations between the United States and Serbia by financing Serbian lobbying efforts in the United States.[18] ECF No. 158-2, Material Facts I ¶ 81 (the plaintiff " agreed to pay for the services of James Denton" ); Def.'s Summ. J. Mot., ECF No. 154-10, Ex. 113 (September 2003 Article) at 4 (article reporting that the plaintiff stated: " I was helping Djindjic by giving advice, but in other ways too, primarily

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by paying a company that was lobbying for the opposition in the USA at the time. That way I wanted to present a new Serbia in the USA, so Washington can recognize the new democratic alternative, to show that Serbia is not what Milosevic had created it to be . . . ." ); Def.'s Summ. J. Mot., ECF No. 148-3, Ex. A (June 2001 Blic News Article), at 41 (reporting on contract between Djindjic and lobbyist James Denton, where Denton was to " be engaged in public relations in the USA on behalf of the Serbian [g]overnment" and present Serbia as " a stable, forward-looking country, suitable for investment" ); id. (" Denton will work under the supervision of the Prime Minister [Djindjic] or his representative on renewing friendly relationships between the two countries, especially with the Administration of President Bush and the U.S. Congress, identifying and coordinating American programs of technical and economic assistance" (internal quotations omitted)). Additionally, the plaintiff served as an " adviser" to Djindjic on " international economic business affairs." Def.'s Summ. J. Mot., ECF No. 154-10, Ex. 113 (September 2003 Article) at 4 (interview of the plaintiff wherein he acknowledged that " when [Djindjic] became Prime Minister, [he became] his adviser for international economic business affairs" ). In light of this conduct, the plaintiff " realistically [could have been] expected to have a major impact," Waldbaum, 627 F.2d at 1292, on political and economic reforms in Serbia, as well as the integration of Serbia into international institutions, after Milosevic's removal from power.

Regardless of whether the plaintiff intended to keep his friendship with Djindjic " private," Pl.'s Private Figure Mot. at 20, the record demonstrates that the plaintiff entered into a friendship with Djindjic that carried the " risk" of political scrutiny, see Clyburn, 903 F.2d at 33 (" One may hobnob with high officials without becoming a public figure, but one who does so runs the risk that personal tragedies that for less well-connected people would pass unnoticed may place him at the heart of a public controversy." ); Waldbaum, 627 F.2d at 1292 (" Th[e] 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." (internal quotations omitted)); id. at 1298 (" Occasionally, someone is caught up in the controversy involuntarily and, against his will, assumes a prominent position in its outcome." ), and the press got wind of it and swept him into the public discussion regarding political and economic reform in the post-Milosevic regime in Serbia,[19] Def.'s Summ. J. Mot., ECF No. 153-14,

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Ex. 82 (June 2002 Article) at 2 (inquiring about the allegation that " companies such as Zepter, . . . that are allegedly close to the regime, have been exempted from taxes and it has attracted public attention" ), including Djindjic's tie to the " financial elite," see Def.'s Summ. J. Mot., ECF No. 151-10, Ex. 32 (January 2001 Reporter Article) at 2 (" [T]here's a wave of attacks against Djindjic as well: statements that the changes he's trying to introduce are purely cosmetic and aimed at following the financial elite created during the Milosevic regime -- representatives of whom are allegedly his close friends -- to keep its positions and power[.]" ); see also Def.'s Summ. J. Mot., ECF No. 148-3, Ex. A (September 2001 SPO Article) at 13 (" Instead of subjecting [the plaintiff's] wealth and monopoly on all state affairs to investigation, the Mafia don Zoran Djindjic is giving him support for the suppression of opposition activity and critical thought in Serbia. . . . [The] Serbian Renewal Movement will . . . illuminate[] the character and deeds of [the plaintiff], organizer and patron of smuggling and crime in Serbia." ).[20]

The plaintiff's public political and financial support of Djindjic " markedly raised the chances that he would become embroiled in [the] public controversy." Clyburn, 903 F.2d at 33, see also Thompson, 394 F.2d at 776 (finding plaintiff was a public figure who " did not confine himself to private discussion of the issues in [a] primary [political campaign]" and who " took a prominent role in a group appealing for public support" to be a public figure). His support led the press to even anoint him the " most important financier of the Serbian Government." Def.'s Summ. J. Mot., ECF No. 148-3, Ex. A (August 2001 Article) at 51 (" [The plaintiff] has decided to conquer Serbia . . . in his own way. Namely, [the plaintiff] has become the most important financier of the Serbian Government: out of his own pocket, he is financing Jim Denton, an American lobbyist for Zoran Djindjic; he is paying

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the bills incurred by the Government abroad, investing in the fallen Serbian economy . . . . Well-informed people even claim that [the plaintiff] has become the most important and most influential businessman in Serbia, and that his words count." ). The plaintiff, therefore, had a " sufficiently central role in the controversy." Clyburn, 903 F.2d at 31.

Accordingly, the Court rejects the plaintiff's proposition that he played no role in any public controversy.[21] See Summ. J. Opp'n at 8-10. The fact that the plaintiff did not appear frequently in the defendant's reporting of the Balkans is not dispositive.[22] See id. at 10-11. Rather, the Court also " can look to the plaintiff's past conduct, the extent of press coverage, and the public reaction to his conduct and statements." Waldbaum, 627 F.2d at 1297; see also id. at 1292 (" [Th[e] 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." (internal quotations omitted)). And in so doing, the Court is persuaded that the plaintiff was an outspoken political and financial supporter of Djindjic, who " could realistically have been expected . . . to have an impact" on Serbian political and financial reform, as well as Serbia's integration into international institutions,

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during the relevant timeframe.[23] See, e.g., Def.'s Summ. J. Mot., ECF No. 154-10, Ex. 113 (September 2003 Article) at 4 (" I was helping [Djindjic] . . . by mostly giving advice, but in other ways too, primarily by paying a company that was lobbying for the opposition in the USA at the time. That way I wanted to present a new Serbia in the USA, so Washington can recognize the new democratic alternative, to show that Serbia is not what Milosevic had created it to be . . . ." ); id. (" [W]hen [Djindjic] became Prime Minister, [the plaintiff became] his adviser for international economic business affairs." ); Def.'s Summ. J. Mot., ECF No. 153-13, Ex. 81 (www.milovanbrkic.com Article ) at 15 (" [The plaintiff], also invested more than ten million dollars in the Democratic Party and Mr. Djindjic personally." ); Def.'s Summ. J. Mot., ECF No. 153-14, Ex. 82 (June 2002 Article) at 2 (inquiring about the allegation that " companies such as Zepter, . . . that are allegedly close to the regime, have been exempted from taxes and it has attracted public attention" ).

3. The Relevance of the Challenged Passage in Report 145 to the Plaintiff's Role in the Public Controversy

The plaintiff contends that there is no nexus between the alleged defamatory association between him and the Milosevic regime in the challenged passage of Report 145 and the public controversy regarding political and economic reform, and Serbia's integration into international institutions, after Milosevic's removal from the government. See Summ. J. Opp'n at 17-18. The plaintiff argues with that the challenged passage in Report 145 does not concern his relationship with Djindjic, which he contends is the extent of his involvement with Serbian political and economic reform in post-Milosevic Serbia. See Summ. J. Opp'n at 17-18. But the plaintiff's position fails to acknowledge that the regime replacing Milosevic, which included Djindjic, ran its political campaign on the " promise[]" that those with ties to the Milosevic regime " would be forced to answer for past misdeeds." Pl.'s Private Figure Mot., ECF No. 145-4, Ex. 12 (Report 145) at 17. And while Djindjic may have been perceived as the " anti-Milosevic," Private Figure Reply at 12 (emphasis in original), there was also a simultaneous public debate as to whether that was the indeed the case. See Def.'s Summ. J. Mot., ECF No. 148-3, Ex. A (September 2001 SPO Article) at 13 (" Financier of the Democratic Party, [the plaintiff], according to the writing of many domestic and foreign media a famous arms dealer, who is called to account by the Israeli government, a businessman who acquired

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enormous wealth in Serbia from unknown sources during Slobodan Milosevic's rule . . . ." ); Def.'s Summ. J. Mot., ECF No. 151-10, Ex. 32 (January 2001 Reporter Article) at 2 (" [T]here's a wave of attacks against Djindjic as well: statements that the changes he's trying to introduce are purely cosmetic and aimed at following the financial elite created during the Milosevic regime -- representatives of whom are allegedly his close friends -- to keep its positions and power[.]" ); ECF No. 151-9, Ex. 31 (January 2001 Economist Article) at 2 (" One of Serbia's leading columnists, by no means a fan of Mr[.] Milosevic, calls Mr[.] Djindjic 'Little Slobo[,'] implying that he has the same dictatorial tendencies." ).

" [A]nswering for past misdeeds," Pl.'s Private Figure Mot., ECF No. 145-4, Ex. 12 (Report 145) at 17, committed under Milosevic's rule is, therefore, not " wholly unrelated" to the debate concerning Serbian political and economic reforms after he was ousted from power in Serbia, see OAO Alfa Bank, 387 F.Supp.2d at 44 (finding alleged defamatory statements concerning corruption and illegal conduct of Russian oligarchs, a " component of" and not " 'wholly unrelated'" to " the debate over the consequences of Russia's economic reforms" (quoting Tavoulareas, 817 F.2d at 774)). Accordingly, the Court finds that the challenged passage in Report 145 is germane to the plaintiff's participation in the public controversy.

B. Malice

Reflecting this country's " national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open," the First Amendment sets a high bar for " public figures" to prevail on a defamation claim. New York Times, 376 U.S. at 270. Specifically, a public figure may prevail in a defamation suit only if the public figure can produce " clear and convincing evidence" that the challenged publication was made with " actual malice" --i.e., with " knowledge that it was false or with reckless disregard of whether it was false or not." Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991). As the Supreme Court has explained, " [t]he question whether the evidence in the record in a defamation case is of the convincing clarity required to strip the utterance of First Amendment protection is not merely a question for the trier of fact." Bose Corp. v. Consumers Union, 466 U.S. 485, 511, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984). " Judges, as expositors of the Constitution, must independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of actual malice." Id. (internal quotations omitted).

" The standard of actual malice is a daunting one." McFarlane v. Esquire Magazine, 74 F.3d 1296, 1308, 316 U.S.App.D.C. 35 (D.C. Cir. 1996). To meet this burden, the plaintiff can " come forward with any direct evidence of actual malice." OAO Alfa Bank, 387 F.Supp.2d at 49. Otherwise, " [p]roof of actual malice may take the form of circumstantial evidence." Id. at 50 (citing Clyburn, 903 F.2d at 33). Moreover, the plaintiff is " entitled" to " the benefit of the aggregate of [the] evidence" concerning actual malice. Lohrenz, 350 F.3d at 1283 (citing McFarlane, 74 F.3d at 1304, and Tavoulareas, 817 F.2d at 794 n.43). However, " courts have identified only three scenarios in which the circumstantial evidence of subjective intent could be so powerful that it could provide clear and convincing proof of actual malice." Id. " These scenarios are where there is evidence that

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the story: (i) was 'fabricated' or the product of defendants' imagination; (ii) is 'so inherently improbable that only a reckless man would have put [it] in circulation'; or (iii) is 'based wholly on a source that the defendant had obvious reasons to doubt, such as an unverified anonymous telephone call.'" Id. (quoting McFarlane, 91 F.3d at 1512-13). " [A]ctual malice[, however,] 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. " Such an approach would be inadequate to ensure correct application of both the actual malice standard and the requirement of clear and convincing evidence." Id.

Here, because the plaintiff is a limited-purpose public figure, the burden of demonstrating actual malice proves too much for the plaintiff to overcome on summary judgment, as he merely introduces " pieces of circumstantial evidence tending to show that the defendant published in bad faith," which are individually and collectively insufficient as a matter of law to demonstrate actual malice on the part of the defendant.[24] Id. This burden is compounded by the plaintiff's seemingly erroneous understanding of the evidentiary standard for malice at the summary judgment stage for a limited public figure such as himself. See Summ. J. Opp'n at 26-27. The plaintiff asserts that it is unnecessary for him to come forward with clear and convincing evidence for a reasonable jury to conclude that the defendant acted with actual malice in publishing the challenged passage. See id. Not so.

In a Supreme Court case cited by the plaintiff himself, the summary judgment standard is clearly explained:

When determining if a genuine factual issue as to actual malice exists in a libel suit brought by a public figure, a trial judge must bear in mind the actual quantum and quality of proof necessary to support liability under [New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)]. For example, there is no genuine issue if the evidence presented in the opposing affidavits is of insufficient caliber or quantity to allow a rational finder of fact to find actual malice by clear and convincing evidence.

Anderson, 477 U.S. at 254 (emphasis added). Consequently, " [a]s a limited-purpose public figure, [the plaintiff] c[an] successfully resist a summary judgment motion only if [he] c[an] point to record evidence from which a reasonable jury could find (by the 'clear and convincing' standard) that the [defendant] published the articles in question with actual malice." Clyburn, 903 F.2d at 33 (quoting Anderson, 477 U.S. at 254)); see also Lohrenz, 350 F.3d at 1283.

Not once does the plaintiff contend that he has come forth with " clear and convincing" evidence of actual malice in this libel suit that creates a genuine issue of material fact for trial. The plaintiff merely argues that there is " sufficient" evidence to raise a genuine issue as to whether the

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defendant acted maliciously in publishing the alleged defamatory remarks about the plaintiff in Report 145. See, e.g., Summ. J. Opp'n at 26, 45. But based on the plaintiff's opposition to the defendant's motion for summary judgment, the plaintiff's understanding of what is " sufficient" to survive summary judgment on the issue of malice, is not " clear and convincing" evidence--it is some lesser standard. As a result of the plaintiff's failure to contend that there is " clear and convincing" evidence demonstrating malice on the part of the defendant in publishing the challenged passage in Report 145,[25] the Court grants summary judgment to the defendant.

Alternatively, even construing the plaintiff's opposition as having argued that " clear and convincing" evidence of malice exists in the evidentiary record, the Court would still grant the defendant's motion for summary judgment because the plaintiff's purported circumstantial evidence of the defendant's malicious intent in publishing the challenged passage in Report 145 are legally insufficient to clearly and convincingly demonstrate malice.[26] See Tucker v. Fischbein, 237 F.3d 275, 286 (3d Cir. 2001) (explaining that theories of actual malice " grounded on allegations of poor journalistic practices" such as " a preconceived story-line," " not follow[ing] . . . editorial guidelines," and " fail[ing] to conduct a thorough investigation . . . are without support in the case law" ).

First, the plaintiff accuses the defendant of disregarding its own operating procedures in publishing Report 145. See Summ. J. Opp'n at 33-35 (enumerating several internal publication standards that International Crisis Group did not follow). But as the Supreme Court and this Circuit has explained, the evidence of malice " must show more than 'highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.'" Lohrenz, 350 F.3d at 1284 (quoting Harte-Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657, 666, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989)); see also Parsi v. Daioleslam, 890 F.Supp.2d 77, 83 (D.D.C. 2012) (" [S]loppiness is not evidence of actual malice." ).[27]

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The plaintiff's reliance on Masson v. New Yorker Magazine, Inc., 960 F.2d 896 (9th Cir. 1992) is misplaced. There, " during a fact-checking process initiated" by the defendant, the plaintiff spoke to the defendant's fact checker, raised objections about the defamatory article, and suggested changes to the article. Id. at 900. The plaintiff's allegations there also suggested that the fact checker looked into the merits of the objections, the fact checker then removed some inaccuracies in the draft article, and that the changes were not incorporated into the final publication. See id. at 901. As a result of this conduct, the Ninth Circuit concluded that a jury could infer that the defendant had serious doubt about the accuracy of what was written about the plaintiff. See id. at 902. But no analogous series of events occurred here. Nor could it, as the plaintiff concedes that the defendant " consciously chose to not contact [the plaintiff] to discuss its allegations" before Report 145 was published. Summ. J. Opp'n. at 32.

Second, the plaintiff suggests that Report 145 was the product of a pre-conceived story line that all wealthy Serbian citizens were Milosevic cronies.[28] See Summ. J. Opp'n at 31-32. Again, allegedly having a pre-conceived story line is not sufficient to demonstrate actual malice.[29] Tucker, 237 F.3d at 286 (explaining that theories of actual malice " grounded on allegations of poor journalistic practices" such as " a preconceived story-line . . . are without support in the case law" ). And the defendant's decision to not contact the plaintiff confirming this story line, Summ. J. Opp'n at 32, is also not supportive of a finding of actual malice, see McFarlane, 91 F.3d at 1510-11 (reasoning that contacting the subject of allegedly defamatory allegations could reasonably result in denial of those allegations, but " 'hardly alert the conscientious reporter to the likelihood of error'" (quoting Edwards v. Nat'l Audubon Soc'y, Inc., 556 F.2d 113, 121 (2d Cir. 1977)); see also Secord, 747 F.Supp. at 789 (" Accordingly, the plaintiff cannot rely on the defendant's failure to consult with him prior to the publication of [the allegedly defamatory material] as evidence of actual malice." ).[30]

Third, the plaintiff avers that the defendant must have known that the plaintiff

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never supported Milosevic because he was close friends with Djindjic, who the defendant knew " vigorously opposed Milosevic and sought to overthrow the Milosevic regime." Summ. J. Opp'n at 32-33. But the defendant correctly notes that this " advances a false dichotomy." Summ. J. Reply at 24. Nothing in the record suggests that the defendant had obvious doubts that the plaintiff could not have had friendly relations with both Milosevic and Djindic.[31] Def.'s Summ. J. Mot., ECF No. 148-3, Ex. A (September 2001 SPO Article) at 13 (" Financier of the Democratic Party, [the plaintiff], according to the writing of many domestic and foreign media a famous arms dealer, who is called to account by the Israeli government, a businessman who acquired enormous wealth in Serbia from unknown sources during Slobodan Milosevic's rule . . . ." (emphasis added)); id. (" Instead of subjecting his wealth and monopoly on all state affairs to investigation, the Mafia don Zoran Djindjic is giving him support for the suppression of opposition activity and critical thought in Serbia. . . . [The] Serbian Renewal Movement will . . . illuminate[] the character and deeds of [the plaintiff], organizer and patron of smuggling and crime in Serbia." ). In fact, the record even contains deposition testimony from a former Serbian security chief, who was loyal to both Milosevic and Djindjic. See Summ. J. Reply, ECF No. 163-10, Ex. 6 (Deposition of Vojin Petrovic (" Petrovic Dep." )) at 9:20-12:15, 17:6-18:20 (explaining that he worked for Serbian state security during the Milosevic and Djindjic regimes).

Fourth, the plaintiff asserts that the defendant's mistaken reliance on a United States frozen assets list from OFAC demonstrates actual malice. Summ. J. Opp'n at 36-38. The law does not support the plaintiff's assertion, as it amounts to nothing more than a failure to investigate, which alone does not prove actual malice. Lohrenz, 350 F.3d at 1284 (" failure to investigate does not in itself establish bad faith" (citing St. Amant, 390 U.S. at 733)); Parsi, 890 F.Supp.2d at 83 (" [S]loppiness is not evidence of actual malice." ). A failure to investigate only arises to the level of malice where the defendant also has " obvious reasons to doubt the accuracy of a story." Lohrenz, 350 F.3d at 1284. Here, however, the defendant understood and interpreted the OFAC list in a manner consistent with OFAC. Summ. J. Reply at 26 (comparing International Crisis Group's interpretation of the OFAC list with then-Director of OFAC's interpretation of the OFAC list). And in any event, the defendant's employees testified that they did not doubt the accuracy of the challenged passage in Report 145. ECF No. 158-2, Material Facts I ¶ ¶ 101-03.

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Fifth, the plaintiff criticizes the defendant for relying on the Serbian press, which the defendant described in Report 145 as " sensationalist bordering on libel" and " notorious for spreading [rumors] and outright lies." Summ. J. Opp'n at 39 (quoting Pl.'s Private Figure Mot., ECF No. 145-4, Ex. 12 (Report 145) at 9, 10). But, as explained earlier, the plaintiff has taken these characterizations out of context. A reasonable reading of Report 145 neither leads to the conclusion nor even implies that all Serbian press articles cannot be trusted. See Pl.'s Private Figure Mot., ECF No. 145-4, Ex. 12 (Report 145) at 9-10. Similarly, the sources in the record cited by the plaintiff do not demonstrate that the defendant should have ignored the information published by the Serbian press entirely. See Summ. J. Opp'n at 39-40. In fact, Lyon, who was one of the Balkan experts at the International Crisis Group and the primary researcher and author of Report 145, recognized that the accuracy of the press had to be assessed on a " case-by-case basis," as some press articles relied on " detailed information from certain government media files." Def.'s Summ. J. Mot., ECF No. 150-1, Ex. 16 (Lyon Dep.) at 22:6-22. To the extent that the Serbian press lacked some degree of credibility, reliance on " some" of its articles is insufficient for a finding of actual malice. See McFarlane, 91 F.3d at 1508 (" '[T]he plaintiff must establish that even in relying upon an otherwise questionable source the defendant actually possessed subjective doubt.'" quoting Secord, 747 F.Supp. at 794); Lohrenz, 350 F.3d at 1286 (" 'reliance upon some biased sources . . . do[es] not amount to reckless disregard of the truth'" (quoting Loeb v. New Times Communs. Corp., 497 F.Supp. 85, 93 (S.D.N.Y. 1980))). In fact, the defendant's recognition that some unreliability exists, rebuts the plaintiff's contention that the defendant acted with actual malice. See McFarlane, 74 F.3d at 1304 (" full (or pretty full) publication of the grounds for doubting a source tends to rebut a claim of malice, not to establish one" (citing Tavoulareas, 817 F.2d at 788 n.35)).

Sixth, the plaintiff objects to the defendant's reliance on confidential sources to dispel any notion that it did not act maliciously in publishing the allegedly defamatory publication.[32] Summ. J. Opp'n at 44-45. But reliance on confidential sources to rebut any insinuation of malice is proper. Clyburn, 705 F.Supp. at 642 (" [D]efendants['] reliance on the confidential sources, who, in turn, relied on informants, does not indicate actual malice." ). And contrary to the plaintiff's position, Summ. J. Opp'n at 44-45, the defendant did not have an obligation to verify the reliability or existence of the confidential sources unless " the defendant actually possessed subjective doubt," as to their veracity. McFarlane, 91 F.3d at 1508 (quoting Secord, 747 F.Supp. at 794 ). The plaintiff has not presented clear and convincing evidence as to why Lyon should have doubted, let alone that he did doubt, the reliability of his confidential sources. The plaintiff, without proof, merely calls them " shadowy," Summ. J. Opp'n at 44, which is insufficient to show that Lyon should have doubted the information he received from his confidential sources,

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see McFarlane, 91 F.3d at 1508 (allowing the defendant to rely on a questionable source so long as there is no subjective doubt on the part of the defendant).

Finally, the plaintiff's charge that Lyon " targeted Zepter . . . for extortion" is an appealing basis for finding actual malice at first blush.[33] Summ. J. Opp'n at 29-31. According to the plaintiff, Lyon met with the plaintiff " in an airport in Geneva[, Switzerland] and solicited money in exchange for ceasing . . . further publication of negative allegations about [the plaintiff]." Id. Even accepting this allegation as true, it does not amount to " clear and convincing" evidence of malice.[34] As the District of Columbia Circuit has explained:

It is settled that ill will toward the plaintiff or bad motives are not elements of actual malice and that such evidence is insufficient by itself to support a finding of actual malice. The rationale for this rule is that speech honestly believed, whatever the speaker's motivation, contributes to the free interchange of ideas and the ascertainment of truth. To recover, plaintiffs cannot ground their claim on a showing of intent to inflict harm, but must, instead, show an intent to inflict harm through falsehood. . . . The appropriateness of such evidence must be determined on a case-by-case basis, bearing in mind that evidence of ill will or bad motives will support a finding of actual malice only when combined with other, more substantial evidence of a defendant's bad faith.

Tavoulareas, 817 F.2d at 795 (internal citations, quotations, and alterations omitted).

Thus, even if Lyon attempted to solicit money from the plaintiff in return for Lyon's termination of his derogatory allegations about the plaintiff, this does not show a " willingness to publish falsehoods" about the plaintiff.[35] Id. To the contrary,

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during this alleged meeting, the plaintiff admits that Lyon told him that he " ha[d] reliable sources" and that he " believed" that what he wrote about the plaintiff was " true." Summ. J. Reply, ECF No. 163-12, Ex. 8 (Deposition of Philip Zepter (" Zepter Dep. I" )) at 307:21-311:7. In fact, the plaintiff admits that allegations concerning the others identified along with him in the challenged passage of Report 145 as allegedly having supported Milosevic, are " mostly" true. Def.'s Summ. J. Mot., ECF No. 150-7, Ex. 22 (Deposition of Philip Zepter II (" Zepter Dep. II" ) at 292:3-5 (" I[ am] in the same category like all these people that really have connections with the Milosevic regime." ); id. at 292:6-11 (" Q: . . . Do you agree that the other people in the category who were listed did have [connections with Milosevic?] -- A: Mostly. Yes." ). So, there is no basis for the Court to find that Lyon had reason to subjectively entertain serious doubts as to the truth of what was published about the plaintiff in Report 145, as he was legally permitted to rely on confidential sources. See McFarlane, 91 F.3d at 1508. Although the Court certainly does not condone such journalistic behavior, if in fact it occurred,[36] the law of this Circuit does not permit the plaintiff to prove malice through " contemptible" behavior. See Tavoulareas, 817 F.2d at 796 (" [The defendant]'s avowed interest in [unlawfully] obtaining documentary evidence from [the plaintiff] . . ., no matter how contemptible the means to be employed, does not indicate a willingness to publish unsupported allegations." (emphasis in original)). The case law " resoundingly rejects the proposition that a motive to disparage someone is evidence of actual malice." Parsi, 890 F.Supp.2d at 90.

Finally, the Court's examination of the plaintiff's proffered evidence of actual malice in the aggregate does not compel a different outcome, see Lohrenz, 350 F.3d at 1283, 1284 (recognizing that plaintiff was entitled to " the benefit of the aggregate of her evidence" regarding actual malice, but finding no malice despite evidence that the defendant was " on a mission to advance a preconceived story line," that the defendant " acted on the basis of a biased source," and that the defendant had " incomplete information" ); McFarlane, 91 F.3d at 1510, 1511-14 (finding " cumulative force of the evidence" of actual malice to be " very weak" where evidence demonstrated a " failure to contact any individual who would have had first-hand knowledge," a " lack of corroboration," a reliance on a source with " credibility" issues, as well as a document that yielded an " inconsistency" ), as even collectively, it does not demonstrate clearly and convincingly that the challenged passage in Report 145 was fabricated, inherently improbable, or based on a source that the defendant or any of its employees had obvious reasons to doubt, Lohrenz, 350 F.3d at 1284. In sum, none of the plaintiff's proffered evidence is enough to bring this case before a jury that must find by clear and convincing evidence that the defendant maliciously

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published the challenged passage in Report 145.[37]

4. The Defendant's Motion to Strike Hearsay Declarations

The defendant sought to preclude the Court from considering, in its summary judgment analysis, the declarations of three individuals submitted by the plaintiff, by moving to strike them on hearsay grounds. See Def.'s Mot. to Strike at 1-3. Those declarations were provided by the following individuals: (1) Dris Sayad, Pl.'s Private Figure Mot., ECF No. 145-6, Declaration of Dris Sayad (" Sayad Decl." ); (2) Vibor Mulic, Summ. J. Opp'n, ECF No. 158-8, Declaration of Vibor Mulic (" Mulic Decl." ); and (3) Elmar Jordan, Summ. J. Opp'n, ECF No. 158-9, Declaration of Elmar Jordan (" Jordan Decl." ). Def.'s Mot. to Strike at 1-2. The declaration of Dris Sayad generally describes the substance of a meeting he had with a man named Stanko Subotic, during which Subotic allegedly explained how he was the target of an extortion scheme by Lyon. See Pl.'s Private Figure Mot., ECF No. 145-6, Sayad Decl. ¶ ¶ 2-4, 6-7. Likewise, Vibor Mulic's declaration describes meetings he had with, among others, a man named Bogoljub Karic. See Summ. J. Opp'n, ECF No. 158-8, Mulic Decl. ¶ 4. During these meetings, Karic allegedly also described an extortion attempt by Lyon. Id. ¶ ¶ 5-7. Elmar Jordan's declaration calls into question the alleged Office of the High Representative report (" OHR Report" ) relied upon by the defendant in publishing Report 145. See Summ. J. Opp'n, ECF No. 158-9, Jordan Decl. ¶ ¶ 1-4. The Court will grant the defendant's motion to strike the declarations of Dris Sayad and Vibor Mulic, but deny the motion to strike the declaration of Elmar Jordan as moot because the defendant was judicially estopped from relying on the OHR report.

The declarations of Sayad and Mulic essentially serve as mouthpieces for Subotic and Karic, respectively. The defendant attempted to depose Subotic and Karic abroad in this case, but to no avail. See Pl.'s Private Figure Mot., ECF No. 145-6, Sayad Decl. ¶ 2 (" Mr. Subotic also agreed to give his deposition in this case at a later date. I have been advised that he did not appear when scheduled in a Geneva Court." ); Summ. J. Opp'n, ECF No. 158-8, Mulic Decl. ¶ 3 (" I understand that Mr. Karic was going to testify in this action but that he was unable to do so." ); see also Def.'s Mot. to Strike at 5, 9 (describing efforts to depose Subotic and Karic). The Court will not allow the plaintiff to subvert the discovery process by using these declarations to oppose the defendant's motion for summary judgment, as the defendant has not had the opportunity to cross-examine

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the testimony of either Subotic or Karic.[38] Cf. United States ex rel. Fago v. M & T Mortgage Corp., No. 03-cv-1406(GK), 2006 WL 949899, at *1 (D.D.C. Apr. 11, 2006) (striking untimely declarations from individuals whose identities were not disclosed during discovery and whose depositions could not be taken); see also Judicial Watch, Inc. v. U.S. Dep't of Commerce, 224 F.R.D. 261, 263-64 (D.D.C. 2004) (" The 'requirement of personal knowledge by the affiant is unequivocal, and cannot be circumvented.'" (quoting Londrigan v. FBI, 670 F.2d 1164, 1174, 216 U.S.App.D.C. 345 (D.C. Cir. 1981))).

Further, consideration of these declarations would unfairly prejudice the defendant. Although the submission of declarations is appropriate in conjunction with summary judgment briefing, Fed.R.Civ.P. 56(c)(4),[39] the Court may strike declarations if they are irrelevant or unfairly prejudicial, see Wasserman v. Rodacker, No. 06-cv-1005(RWR), 2007 WL 274748, at *2 (D.D.C. Jan. 29, 2007); see also Judicial Watch, 224 F.R.D. at 264 (" [S]tatements that are impermissible hearsay, conclusory or self-serving are generally precluded." ).

Here, the plaintiff's intent to demonstrate " that Lyon had engaged in similar extortionary conduct targeting others, including . . . Subotic and . . . Karic," Opp'n to Def.'s Strike Mot. at 6, is prohibited under the Federal Rules of Evidence, see Fed.R.Civ.P. 56(c)(4) (" declaration . . . must . . . set out facts that would be admissible in evidence" (emphasis added)). If considered, the evidence would clearly suggest that because Lyon allegedly attempted to extort others, then he must have engaged in the same type of behavior against the plaintiff as well. This is precisely the type of evidence that Federal Rule of Evidence 403, see Fed.R.Evid. 403 (excluding evidence where probative value is substantially outweighed by " unfair prejudice," " confus[ion of] the issues," or tendency to " mislead the jury" ), and Federal Rule of Evidence 404 preclude, see Fed.R.Evid. 404(a)(1) (" Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait." ); Fed.R.Evid. 404(b)(1) (" Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." ); see also Judicial Watch, 224 F.R.D. at 264 (striking portions of a declaration that were " impermissible attempts to place before the Court irrelevant, impugning and/or inflammatory statements" ).[40] Accordingly, the Court did not consider these declarations in conducting its summary judgment analysis.[41]

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IV. Conclusion

For the foregoing reasons, the Court concludes that the plaintiff is a limited-purpose public figure, who has failed to present clear and convincing evidence for a reasonable jury to find actual malice on the part of the defendant. Therefore, summary judgment is granted in favor of the defendant on the plaintiff's defamation claim, as well as his false light invasion of privacy claim, and the plaintiff's motions for partial summary judgment are denied.[42]

SO ORDERED.


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