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Deripaska v. The Associated Press

United States District Court, District of Columbia

October 17, 2017

OLEG V. DERIPASKA, Plaintiff,
v.
THE ASSOCIATED PRESS, Defendant.

          MEMORANDUM OPINION

          ELLEN SEGAL HUVELLE UNITED STATES DISTRICT JUDGE.

         Oleg Deripaska, a self-described private investor and industrialist, has sued the Associated Press (“AP”), claiming defamation by direct statements and by implication. He argues that the AP falsely accused him of “involvement in criminal activities and other improprieties.” (Compl. ¶ 4.) The AP has filed two motions to dismiss, one under Federal Rule of Civil Procedure 12(b)(6), and the other under the District of Columbia Anti-Strategic Lawsuits Against Public Participation (Anti-SLAPP) Act of 2010, D.C. Code § 16-5502(a). Upon consideration of the motions, opposition, and record, the Court finds that Deripaska has failed to state a claim upon which relief can be granted and therefore grants the defendant's motion to dismiss under Rule 12(b)(6). A separate Memorandum Opinion, ECF No. 16, addresses the AP's Anti-SLAPP special motion to dismiss.

         BACKGROUND

         The facts here are relatively straightforward. On March 22, 2017, the AP separately published an article and online video discussing the relationship between Donald Trump's former campaign manager Paul Manafort and Russia. (Compl. ¶¶ 5-7, ECF No. 1.)

         The article opens with the sentence, “Before signing up with Donald Trump, former campaign manager Paul Manafort secretly worked for a Russian billionaire with a plan to ‘greatly benefit the Putin Government, ' The Associated Press has learned.” (Exh. A at 1, ECF No. 6.) The article goes on to explain that “Manafort proposed a confidential strategy plan as early as June 2005” to Deripaska, (id.), who is described as an “aluminum magnate” and “a close Putin ally with whom Manafort eventually signed a $10 million annual contract beginning in 2006.” (Id. at 2.) Deripaska alleges that the article contains three defamatory statements and that it defames him when read as a whole. (Compl. ¶¶ 5-7, ECF No. 1.)

         The three alleged defamatory “statements” are each comprised of between two and four non-consecutive sentences pulled from the article. The first statement includes a sequence of alleged falsehoods that Deripaska claims inculpate him in criminal activity. (Compl. ¶¶ 15-26.) Deripaska alleges that the following three sentences make up the first statement: 1) “Manafort worked for Deripaska pursuant to a 2005 strategy plan that was to ‘greatly benefit the Putin Government'” (Opp. Mot. Dismiss at 9-10, ECF No. 10); 2) “The federal Foreign Agents Registration Act requires that ‘people who lobby in the U.S. on behalf of foreign political leaders or political parties must provide detailed reports about their actions to the department, ” and “[w]illfully failing to register [under FARA] is a felony” (id. at 10); and 3) “Manafort did not disclose details about the lobbying work to the Justice Department during the period the contract was in place.” (Id.) Deripaska argues that by “express[ing] certainty about the connection between the plans set forth in the 2005 Manafort Memo and funds paid by Mr. Deripaska to Mr. Manafort” (Compl. ¶ 17), alongside the assertion that the memo proposed a “model [to] greatly benefit the Putin Government, ” (id. ¶ 16), the AP made “a false and defamatory statement.” (Id. ¶ 18.) Specifically, Deripaska alleges that the AP “assert[ed] in substance that Mr. Deripaska paid Mr. Manafort to act as an unregistered foreign agent, ” and thus made “him appear to have been engaged in criminal conduct.” (Id. ¶ 24.)

         As for the second allegedly defamatory statement, Deripaska turns to a quote from United States Senator Lindsey Graham and a statement summarizing the view of the House Intelligence Committee Democrats. He alleges that the following two sentences makes up the second statement: 1) “Republican Sen. Lindsey Graham of South Carolina, a frequent Trump critic, said of Manafort: ‘Clearly if he's getting millions of dollars from a billionaire close to Putin, to basically undermine democratic movements, that's something I'd want to know about” (Opp. at 10); and 2) “Democrats on the House intelligence committee said the new revelations will feature in their investigations.” (Id.) Deripaska claims the second statement “strongly and falsely conveys that Mr. Deripaska's contracts with Mr. Manafort had criminal implications and merit a congressional investigation.” (Compl. ¶ 33.)

         The third allegedly defamatory statement strings together several sentences discussing Manafort's involvement in events in the Ukraine in 2014. (Id. ¶¶ 39-50.) Deripaska alleges that the following language makes up the third defamatory statement: 1) “Deripaska became one of Russia's wealthiest men under Putin, buying assets abroad in ways widely perceived to benefit the Kremlin's interests” (Opp. at 10); 2) “Manafort worked as Trump's unpaid campaign chairman last year from March until August, a period that included the Republican National Convention that nominated Trump in July” (id.); and 3) “The newly obtained business records link Manafort more directly to Putin's interests in the region. According to those records and people with direct knowledge of Manafort's work for Deripaska, Manafort made plans to open an office in Moscow, and at least some of his work in Ukraine was directed by Deripaska, not local political interests there, ” (id.); and 4) “[F]ederal criminal prosecutors became interested in Manafort's activities years ago as part of a broad investigation to recover stolen Ukraine assets after the ouster of pro-Russian President Viktor Yanukovych there in early 2014.” (Id.) Deripaska argues that their “juxtaposition . . . reasonably conveys that Mr. Deripaska stole Ukrainian assets in 2014, and that he is implicated in federal prosecutors' investigation of that theft . . . [and] that the alleged theft of assets from Ukraine is somehow tied to the Trump Campaign Controversy.” (Compl. ¶ 44.) As a result, Deripaska alleges that “[r]eaders of the Article and of its numerous republications by news outlets around the world have been left with the impression that Mr. Deripaska's private, commercial dealings were-and still may be- deeply intertwined with the Trump Campaign Controversy.” (Id. ¶ 7.)

         The AP has moved to dismiss the complaint under Rule 12(b)(6), arguing that the first statement is not capable of defamatory meaning and is not “of-and-concerning” Deripaska, the second statement is nonactionable because it is both an opinion and privileged, and the third statement does not reasonably convey the defamatory implication alleged. (Mot. Dismiss, ECF No. 6.) The AP also argues in the alternative that Deripaska is a limited-purpose public figure and has failed to allege publication with actual malice. (Id. at 28-40.)

         LEGAL STANDARD

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “There is no heightened pleading standard for defamation claims in the District of Columbia.” Intelsat USA Sales Corp. v. Juch-Tech, Inc., 935 F.Supp.2d 101, 117 (D.D.C. 2013) (citing Solers, Inc. v. Doe, 977 A.2d 941, 948 (D.C. 2009)). Rather, the Court “must accept the allegations of the complaint as true, drawing all inferences in the plaintiff's favor, ” and will dismiss under Rule 12(b)(6) “only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Croixland Props. Ltd. P'ship v. Corcoran, 174 F.3d 213, 215 (D.C. Cir. 1999). But unless a plaintiff is able to nudge his or her claim “across the line from conceivable to plausible, ” the complaint must be dismissed. Twombly, 550 U.S. at 571.

         In assessing “whether a complaint states a claim, the court may consider the facts alleged in the complaint, documents attached thereto or incorporated therein, and matters of which it may take judicial notice.” Farah v. Esquire Magazine, 736 F.2d 528, 534 (D.C. Cir. 2013). “Judicial notice is properly taken of publicly available historical articles, ” which are in some cases attached to a defendant's motion to dismiss. Id. At this stage of review in a defamation case, the Court must “decide whether the disputed article (1) contains express or implied verifiably false statements of fact, which (2) are reasonably capable of defamatory meaning or otherwise place appellant in an offensive false light.” Weyrich v. New Republic, Inc., 235 F.3d 617, 623 (D.C. Cir. 2001).

         ANALYSIS

         “In order to state a claim of defamation, [a] plaintiff must allege and prove four elements: (1) that the defendant made a false and defamatory statement concerning the plaintiff; (2) that the defendant published the statement without privilege to a third party; (3) that the defendant's fault in publishing the statement amounted to at least negligence; and (4) either that the statement was actionable as a matter of law irrespective of special harm or that its publication caused the plaintiff special harm.” Solers, Inc., 977 A.2d at 948.[1] The First Amendment requires that where a public figure pursues a libel action, the public figure must ultimately “demonstrate by clear and convincing evidence that the defendant published the defamatory falsehood with ‘actual malice, ' that is, with ‘knowledge that it was false or with reckless disregard of whether it was false or not.'” Liberty Lobby, Inc. v. Dow Jones & Co., Inc., 838 F.2d 1287, 1292 (D.C. Cir. 1988) (quoting N.Y. Times v. Sullivan, 376 U.S. 254, 280 (1964)).

         Actionable statements must be both false and defamatory. Rosen v. Am. Israel Pub. Affairs Comm., Inc., 41 A.3d 1250, 1256 (D.C. 2012). Only publications tending “to injure plaintiff in his trade, profession or community standing, or lower him in the estimation of the community” can be defamatory. Id. And defamatory speech must rise to the level of making the plaintiff appear “odious, infamous, or ridiculous”--it cannot be merely unpleasant or offensive. Id. Liability for a statement on a matter of public concern “may be imposed only if the statement is provably false.” Guilford Transp. Indus., Inc. v. Wilner, 760 A.2d 580, 596 (D.C. 2000) (citing Milkovich v. Lorain Journal Co. et al., 497 U.S. 1, 19-20 (1990)). Although a statement of opinion can be actionable where it implies “a provably false fact, or rel[ies] upon stated facts that are provably false, ” id., “if it is plain that a speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable.” Id. (quoting Guilford Transp., 760 A.2d at 597).

         I. LIMITED-PURPOSE PUBLIC FIGURE

         The AP argues that Deripaska is a limited-purpose public figure “who has fairly exposed himself to public discussion through his activities.” (Mot. Dismiss at 30.) As it applies to Deripaska, the AP defines the public controversy in question as being over “Russian oligarchs who act as de facto emissaries for the Russian government to expand their own influence along with Russia's.” (Reply Mot. Dismiss at 16, ECF No. 11.) The AP also argues that Deripaska has only alleged actual malice in a conclusory fashion. (Mot. Dismiss at 28.) Deripaska counters that “he is not a limited-purpose public figure with respect to the Trump Campaign Controversy, ” which he argues is the “essential subject matter of the Article.” (Opp. at 28.) Moreover, he argues that it is unnecessary to plead actual malice at the motion-to-dismiss stage. Id. The Court finds that Deripaska is a limited-purpose public figure, and he has failed to adequately allege the requisite intent.

         Whether a plaintiff is a limited-purpose public figure is “a matter of law for the court to decide.” Tavoulareas v. Piro, 817 F.2d 762, 772 (D.C. Cir. 1987). “The task of determining whether a defamation plaintiff is a limited-purpose public figure is a difficult one, requiring a highly fact-intensive inquiry that [some have] described as ‘trying to nail a jellyfish to the wall.'” Doe No. 1 v. Burke, 91 A.3d 1031, 1041-42 (D.C. 2014) (quoting Moss v. Stockard, 580 A.2d 1011, 1030 (D.C. 1990)). Nevertheless, a “limited-purpose public figure is ‘an individual (who) voluntarily injects himself or is drawn into a particular public controversy and therefore becomes a public ...


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