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Chandler v. Berlin

United States District Court, District of Columbia

April 3, 2019

DONALD BERLIN, et al., Defendants.




         Defendant Donald Berlin is a private investigator who, in February 2003, prepared what Plaintiff Christopher Chandler terms a “Pitch.” According to Plaintiff, the Pitch is a 134-page document that contains a host of false assertions, accusing Plaintiff and his brother of engaging in various criminal activities, such as money laundering and having ties to organized crime in Russia and Russian intelligence. Apparently, for well over a decade, the contents of the Pitch did not see the light of day. But then in November 2017 the person who received Berlin's work in 2003, Robert Eringer, sent a portion of the Pitch to members of the British media. This disclosure caused a firestorm of negative press accounts, reporting that Plaintiff was involved in money laundering for Russian interests and espionage. In this action for libel per se, Plaintiff alleges that Berlin and his various affiliated companies are liable for the harm caused by their presenting the Pitch to Eringer in 2003, as well as Eringer's republication of portions of the Pitch in 2017.

         Defendants now move to dismiss or, in the alternative, for summary judgment. Treating Defendants' motion as one for summary judgment, the court grants the motion insofar as Plaintiff claims that Defendants are liable for the harm arising from the 2017 republication by Eringer. Defendants could not have reasonably foreseen in 2003 that Eringer would republish the Pitch fourteen years later in 2017. With respect to the original publication of the Pitch in 2003, on the present record the court cannot find that such claim is time barred. There remains a genuine dispute of material fact as to when Plaintiff reasonably could have discovered the alleged libelous matter in the Pitch and Defendants' role in its creation. The court, therefore, declines to enter summary judgment in Defendants' favor as to the original publication of the Pitch in 2003.

         The court, however, will not allow complete discovery on the merits to proceed at this time. Instead, the parties may take limited discovery on the narrow issue of when Plaintiff reasonably could have learned about Defendants' creation of the Pitch, so as to commence the one-year limitations period. The court wishes to satisfy itself that Plaintiff's libel claim as to the 2003 publication of the Pitch is timely before permitting full discovery.


         A. Factual Background[1]

         1.The Pitch and Its Publication

         In 2003, Defendant Donald Berlin, doing business through his investigative services company, Defendant Investigative Consultants, Inc. (“ICI”), compiled a 134-page background document about Plaintiff Christopher Chandler. See Compl., ECF No. 20 [hereinafter Compl.], ¶¶ 4, 20-24; see Defs.' Mot., ECF No. 21, Defs.' Mem., ECF No. 21-1 [hereinafter Defs.' Mem.] (not controverting facts). Berlin prepared the document-which Plaintiff refers to as the “Pitch”- for one Robert Eringer, a resident of Monaco who had ingratiated himself with Prince Albert II of Monaco. Eringer had told the Prince that he could help investigate people living in Monaco who were suspected of engaging in financial improprieties, including Plaintiff and his brother. See Id. ¶¶ 3, 35, 62; see Defs.' Mem. (not controverting facts). Plaintiff prepared the Pitch and gave it to Eringer no later than February 23, 2003. The Pitch contained allegations that Plaintiff and his brother were involved in, among other things, money laundering, organized crime, and espionage for Russia. See Compl., ECF No. 20-1 [hereinafter Pitch], at 1-34. The header of every page of the Pitch, except the first, included the words “Confidential Memorandum to File.” See id.

         In November 2004, Eringer took the information in the Pitch and incorporated it into what Plaintiff calls the “Eringer Report.” Compl. ¶¶ 54-56. At some point thereafter, Eringer took the Eringer Report to create what Plaintiff terms the “Fake Dossier, ” which Eringer disclosed to members of the British media in November 2017. See Id. ¶ 57; see also Pl.'s Decl., ECF No. 22-2 [hereinafter Pl.'s Decl.], ¶¶ 6-11. The next month, the British media began running articles about Plaintiff containing allegations stemming from the Fake Dossier. See Pl.'s Decl. ¶¶ 6-9. At the time, Plaintiff was active in the public debate around “Brexit, ” thus making the Fake Dossier's allegations newsworthy. See Compl. ¶ 58 n.31; Defs.' Mem. (not controverting fact). In an effort to rebut the press reports, Plaintiff sat down with a reporter in May 2018, who showed him a copy of the Fake Dossier, which included the Pitch. The Pitch itself references ICI. See Pl.'s Decl. ¶¶ 10-12. Plaintiff had not seen the Pitch or heard of ICI before May 2018. Id. ¶ 12.

         Berlin asserts that he did not “give permission, authorize, [or] know” that Eringer would disclose the Pitch to the Prince of Monaco or any other third party. See Berlin Decl., ECF No. 21-9 [hereinafter Berlin Decl.], ¶¶ 7-8. Plaintiff offers no facts to dispute that contention. See Pl.'s Mem. in Opp'n to Defs.' Mot, ECF No. 22 [hereinafter Pl.'s Opp'n], Pl.'s Objs. and Resp. to Defs.' Facts, ECF No. 22 at 38-42 [hereinafter Pl.'s Resp. to Facts], ¶ 18. Berlin also contends that he did not “foresee” that Eringer would disclose the Pitch. See Berlin Decl. ¶¶ 7-8. Plaintiff attempts to rebut that assertion with evidence. Specifically, Plaintiff cites a litany of publicly available information about Eringer that pre-dates the creation of the Pitch in 2003, including the fact that Eringer was a tabloid writer, to show that Berlin reasonably should have foreseen that Eringer would republish the Pitch's accusations. See Pl.'s Resp. to Facts ¶ 18.

         2. Related Eringer Publications

         Before 2017, Eringer published the false allegations contained in the Pitch in various ways. In 2009, Eringer brought a lawsuit in California against Prince Albert. The complaint in that action mentioned Eringer's investigation of Plaintiff and accused Plaintiff of doing unregistered, unlawful business in Monaco. See Pl.'s Resp. to Facts ¶ 8; see also Defs.' Mem., ECF No. 21-7, ¶ 13. In 2014, Eringer published a book titled the “Spymaster of Monte Carlo, ” which repeated many of the accusations of criminal wrongdoing contained in the Pitch. See Defs.' Facts ¶¶ 9-10; Pl.'s Resp. to Facts ¶¶ 9-10; see also Pl.'s Opp'n, Exhibit F, ECF No. 22-12, at 17-19, 53-54, 70. Then, in 2016, Eringer created a website posting called “The Art of the Ruse: Richard and Christopher Chandler, ” which appears to contain excerpts from the “Spymaster of Monte Carlo” relating to Plaintiff. See ...

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