United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
P. MEHTA, UNITED STATES DISTRICT JUDGE.
case arises out of the publication of a BuzzFeed News article
about Plaintiff Libre by Nexus and an alleged federal law
enforcement investigation into its business practices. In
response to the article, Plaintiff filed this defamation
action against BuzzFeed, Inc. (“BuzzFeed”), and
its editor-in-chief, Ben Smith (collectively
“Defendants”). Defendants now move to dismiss
Plaintiff's complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) and the District of Columbia
Anti-Strategic Lawsuits Against Public Participation
(“Anti-SLAPP”) Act of 2010, D.C. Code
§§ 16-5501 et seq. For the reasons stated
below, the court grants in part and denies in part
Defendants' Rule 12(b)(6) motion and denies
Defendants' special motion to dismiss under the D.C.
Libre by Nexus is a Virginia-based company that helps
immigrant detainees nationwide to secure bail bonds. Am.
Compl., ECF No. 2, ¶¶ 3, 8. Plaintiff provides such
services by acting as a middleman between immigrant detainees
and bail bond companies. See Id. ¶ 8. Plaintiff
contracts with bail bond companies who actually post the
immigration bonds, and Plaintiff, in turn, secures the
immigrations bonds through indemnifying bonds and by using
GPS technology to monitor released immigrant-detainees.
Id. A released detainee does not have to pay the
full amount of the bond, nor is the detainee required to pay
collateral or use his own property as security. See
Id. According to Plaintiff, its “immigration bond
initiative . . . has reunited thousands of families.”
23, 2016, BuzzFeed published an online article (“the
Article”) titled “Immigrants Desperate To Get Out
Of U.S. Detention Can Get Trapped By Debt” about
Plaintiff and its business practices. Id. ¶ 9.
The Article begins with an interview of an immigrant detainee
who expresses gratitude to Plaintiff for securing his
release, but laments the financial burden imposed by one of
the release conditions, specifically, a monthly fee of $420
he must pay to Plaintiff for the GPS monitoring. See
Defs.' Mot. to Dismiss, ECF No. 6 [hereinafter Defs.'
Mot.], Decl. of Chad R. Bowman, Ex. A, ECF No. 6-2
[hereinafter Article], at 1-2. The Article then goes on to
quote immigrant advocates who criticize Plaintiff's
business model. According to the advocates, because of the
prolonged period between release and a final hearing in
court, some released detainees end up paying more than the
immigration bond itself, leaving them with a heavy financial
burden. Id. at 2-3.
Article then details Plaintiff's business model. It
explains that Plaintiff's “customers” sign a
contract agreeing to pay a nonrefundable $620 initial fee, a
one-time 20 percent premium to the bond issuer, and a $420
monthly rental fee for the GPS tracking equipment.
Id. at 3. Upon release, if the customer can pay 80
percent of the bond and agrees to cover the remaining 20
percent in installments, Plaintiff will remove the GPS
tracking device. Id. Because many immigrant
detainees do not have the assets or resources to pay 80
percent of the bond, even after release, the monthly fee
quickly accrues and can become a heavy financial burden.
Id. at 3-4. As an example, the Article cites and
quotes from court papers in a case filed in Los Angeles, in
which a released detainee claims that he paid $1, 390 more
than his original bond. Id. at 4.
Article is not one-sided, however. BuzzFeed interviewed for
the Article Plaintiff's President, Michael Donovan, who
rebuffed the notion that he runs a predatory business.
Id. As reflected in the Article, Donovan pointed out
that detained immigrants would have few options to secure
release without Plaintiff's service. Id. He also
noted that Plaintiff repays all monies paid toward the
collateral, if any, upon resolution of a detainee's case,
and only 2 percent of customers fail to appear in court.
Article then goes on to report that federal and state
officials have made inquiries into Plaintiff's business
practices. See Id. at 5. It states that in 2015,
U.S. Representative Norma Torres “sent a letter to ICE
requesting an investigation into [Plaintiff's] business
practices and ‘possible exploitation' of its
clients.” Id. at 1, 5. The Article then
notes-critically, for purposes of this action-that Plaintiff
“had already been investigated in 2013 by the
commonwealth attorney for the State of Virginia, the Fairfax
City Police Department, ” and, as most relevant here,
by “ICE's [U.S. Immigration and Customs Enforcement
(‘ICE')] Homeland Securit y Invest igat ion (HSI)
unit for allegedly targeting undocumented immigrants in
custody and fraudulently charging them a fee for
services.” Id. at 5; see Am. Compl.
¶ 9. According to the Article, “[i]n internal ICE
emails, deportation officers also expressed concerns about
some of [Plaintiff's] business model and
practices.” Article at 5. “The investigations,
however, were eventually closed due to lack of
evidence.” Id.; see Am. Compl. ¶
9. The Article also notes that Donovan has had his own
criminal troubles, having been convicted for passing bad
checks when he was 19. Article at 5-6. According to Donovan,
because he could not post bond, he sat in jail for seven
months-an experience that inspired him to work in prison
diversion programs. Id. at 6.
Article concludes by noting that Plaintiff has become an
industry leader since its founding in 2014 and by reiterating
both criticism and approval of Plaintiff's business
model. The Article reports that, although Plaintiff donates
60 to 70 percent of its profits to its charitable arm, which
provides pro bono legal services in immigration court,
critics worry that this arrangement incentivizes the pro bono
attorneys to drag out proceedings to “squeeze”
more rental income from customers. Id. Donovan
denied such conflict of interest. Id. The Article
ends with quotes from a detainee who expresses his gratitude
to Plaintiff for allowing him to reunite with his family.
See Id. at 7.
filed this single-count defamation action against Defendants
on July 22, 2017, see Compl., ECF No. 1, and amended
its complaint the next day, see Am. Compl. In its
Amended Complaint, Plaintiff alleges that the Article is
“full of false and defamatory statements concerning
[Plaintiff] and its business practices.” Am. Compl.
¶ 9; accord Id. ¶ 1. Yet, Plaintiff
identifies only one statement from the Article as false and
defamatory: “‘ICE's Homeland Security
Investigations (HSI) unit [investigated Plaintiff] for
allegedly targeting undocumented immigrants in custody and
fraudulently charging them a fee for services, '”
but “the investigation was ‘eventually closed due
to lack of evidence.'” Am. Compl. ¶ 9; see
Id. ¶¶ 1, 10, 13; see also Id. ¶
17 (“The statement that [Plaintiff] was under
investigation for what amounts to fraud, and/or criminal
conduct, in the practice of its business is of such a type
and nature to tend to prejudice [it] in the eyes of clients,
. . . business partners, bond brokers . . . [and] sureties,
. . . and members of its community in general.”
(emphasis added)). Plaintiff avers that at the time the
Article was published, Defendants had “full
knowledge” of a letter from ICE to U.S. Representative
Torres, dated November 15, 2015 (“November 2015
Letter”), which Plaintiff characterizes as having
“addressed and disposed of any question regarding a
so-called ‘HSI investigation, '”
“establishe[d] beyond any reasonable doubt that
[Plaintiff] was not under investigation by ICE, ” and
“practically endorsed [Plaintiff's] business
model.” Id. ¶ 10. Plaintiff then offers
what appears to be a single quote from the November 2015
Letter: “ICE has no legal authority to investigate or
prosecute bail bond companies or other related service
providers regarding allegations of inappropriate conduct
between two private parties such as an indemnitor and bond
company.” Id. Plaintiff did not attach the
November 2015 Letter to its pleading.
October 13, 2017, Defendants moved to dismiss Plaintiff's
Amended Complaint with prejudice for failure to state a claim
under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
See Defs.' Mot. Defendants contend that
Plaintiff fails to allege facts that plausibly establish that
the challenged statement was false, capable of defamatory
meaning, or even published with the requisite intent (in this
case, actual malice). See Id. at 1-3. Alternatively,
Defendants argue that because the Article links to and
accurately describes a governmental record, the “fair
report privilege” forecloses Plaintiff's defamation
claim. Id. at 1.
addition to their Rule 12(b)(6) motion, Defendants also filed
a “Special Motion to Dismiss” pursuant to the
District of Columbia Anti-SLAPP Act, D.C. Code §
16-5502(a). See Defs.' Special Mot. to Dismiss,
ECF No. 7 [hereinafter Defs.' Special Mot.]. In that
motion, Defendants submit that the Amended Complaint must be
dismissed with prejudice under the D.C. Anti-SLAPP Act
because the Article constitutes “an act in furtherance
of the right of advocacy on issues of public interest,
” D.C. Code § 16-5502(b), and, for the same
reasons articulated in Defendants' 12(b)(6) motion,
Plaintiff cannot demonstrate that its defamation claim is
“likely to succeed on the merits, ” id.
See Defs.' Special Mot. at 4. Defendants seek, under
the D.C. Anti-SLAPP Act, dismissal of this action with
prejudice and an award of reasonable attorneys' fees and
costs. Id. at 12; see also D.C. Code §
16-5502(d); id. § 16-5504.
motion to dismiss under Rule 12(b)(6) tests the legal
sufficiency of a complaint. Sickle v. Torres Advanced
Enter. Sols., LLC, 884 F.3d 338, 344 (D.C. Cir.
2018). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter . . . to state a claim
to relief that is plausible on its face.” Id.
at 344-45 (alteration in original) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). A claim is plausible
on its face “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678.
evaluating a motion under Rule 12(b)(6), the court must
“accept the plaintiff's factual allegations as
true, ” Sickle, 884 F.3d at 345, and
“construe the complaint in favor of the plaintiff, who
must be granted the benefit of all inferences that can be
derived from the facts alleged, ” Hettinga v.
United States, 677 F.3d 471, 476 (D.C. Cir. 2012)
(internal quotation marks omitted). The court need not accept
as true, however, “a legal conclusion couched as a
factual allegation.” Iqbal, 556 U.S. at 678
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,