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Tah v. Global Witness Publishing, Inc

United States District Court, District of Columbia

September 27, 2019

CHRISTIANA TAH, et al., Plaintiffs,
v.
GLOBAL WITNESS PUBLISHING, INC., et al., Defendants.

          MEMORANDUM OPINION

          ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE.

         In 2013, a high-level team of officials of the Government of Liberia helped negotiate the successful sale of off-shore oil drilling rights to the ExxonMobil Corporation. The Liberian government then awarded bonuses of $35, 000 from the proceeds to senior members of the negotiating team, including former Liberian Minister of Justice and Attorney General Christiana Tah and former Chief Executive Officer of the National Oil Company of Liberia Randolph McClain. Corruption-watchdog Global Witness of London and its U.S. arm, Global Witness Publishing, Inc., issued a report that is alleged to imply that Minister Tah and Mr. McClain had effectively received bribes to facilitate the sale. Minister Tah and Mr. McClain sue the two Global Witness entities for defamation. Although the Court agrees that the report implies bribery, and takes as true that bribery did not occur, the contents of the report are protected speech under the First Amendment and cannot sustain a defamation claim. Accordingly, the Court will dismiss the Complaint.

         I. BACKGROUND

         A. The Block 13 Negotiations

         “Block 13” is rectangular plot of territory in the ocean waters off the coast of Liberia. In the belief that Block 13 held valuable oil reserves, the National Oil Company of Liberia (NOCAL), the Liberian government-owned corporation responsible for awarding oil licenses, agreed in 2007 to license the development of Block 13 to Broadway Consolidated PLC (Broadway Consolidated), for which Liberia would receive a share of the oil production. Broadway Consolidated failed to make headway in the work over the next three years, however, so in 2010 Liberia sought another buyer to take over the license on terms more favorable to the country. ExxonMobil expressed interest.

         Negotiations between ExxonMobil and Liberia were conducted on Liberia’s behalf by the Hydrocarbon Technical Committee (HTC or Committee), a governmental body which was created by statute “to superintend the negotiations between entities such as Exxon and the government of Liberia, through its state-owned oil company NOCAL.” Compl. [Dkt. 1] ¶ 24. At the time of the negotiations, the HTC had six members, including Presidential Legal Advisor Seward M. Cooper and the Plaintiffs, Minister Tah and Mr. McClain. Mr. McClain served as its Chair.

         Exxon was unwilling to acquire drilling rights in Block 13 directly from Broadway Consolidated, in part due to rumors of corruption surrounding the original license. However, in 2013 Exxon agreed to an arrangement whereby a third party, Canadian Overseas Petroleum Limited (COPL), purchased the license from Broadway Consolidated and Exxon purchased it from COPL, with an additional payment directly to Liberia. In this manner, Exxon paid $120 million for Block 13 with approximately $50 million going to Liberia itself. Plaintiffs allege that “the Liberian government saw the Exxon deal as an historic victory for the Liberian people, in which the government of Liberia would for the first time receive a substantial payment for the sale of extraction rights.” Id. ¶ 22.

         After the negotiations with Exxon were finalized, Liberian President Ellen Johnson Sirleaf instructed, unsolicited, NOCAL to pay bonuses to the government employees who had participated. Id. ¶ 25. Mr. McClain asked Mr. Cooper and Minister Tah, who are both lawyers, if such payments were lawful. Both agreed that they were. Thereafter, the Board of Directors of NOCAL adopted a resolution directing payment of $500, 000 in bonuses, made from the proceeds of the negotiations, to HTC and NOCAL officials and staff. Payments were made to over 140 employees, including office staff, custodial workers, and drivers. However, the largest bonuses, $35, 000 each, went to the six members of the HTC.

         B. The Global Witness Report

         Global Witness is a non-profit, non-governmental organization based in London which conducts operations in the United States through its offices in Washington, D.C., known as Global Witness Publishing, Inc. Global Witness specializes in “global witness investigation” and its mission centers on “exposing economic networks behind conflict, corruption, and environmental destruction.” Id. ¶ 4-5.

         In March 2018, Global Witness published an investigative report titled “Catch me if you can: Exxon’s complicity in Liberian oil sector corruption and how its Washington Lobbyists fight to keep oil deals secret.” Compl., Ex. A, Global Witness, Catch me if you can (2018) (Report) [Dkt. 1-1]. The Report, which remains available online, was 35 pages long and included 125 footnotes documenting the 2013 sale of a license to Exxon to develop Block 13, as well as the history of Block 13 more generally. The Report used the sale of Block 13 as a case study to discuss the value of Section 1504 of the Dodd-Frank Act, Pub. L. No. 111-203, 124 Stat. 1376 (2010), a law of the United States. Section 1504 requires oil, gas, and mining companies to disclose payments made to foreign governments-the types of disclosures which Global Witness says make the investigation of the Block 13 sale possible and which companies like Exxon oppose. See Report at 11.

         The Report presented a less-than-innocent version of the history and licensing of Block 13. According to Global Witness, Block 13 was “born in the shadows, ” id., and the Report suggested that the “untested” Broadway Consolidated was awarded the initial Block 13 license “because the company was likely part-owned by government officials with the power to influence the award of oil licenses.” Id. at 12. Global Witness believed this partial ownership by Liberian government officials continued through the sale of Block 13 to COPL. The Report further asserted that the licensing of Block 13 to Broadway Consolidated was ratified by the Liberian legislature only after NOCAL spent $118, 400 in lobbying fees in 2006 and 2007, which Liberia’s General Auditing Commission later determined were actually bribes for favorable votes. Id. at 16.

         According to the Report, when Exxon became interested in acquiring the license to develop Block 13, Exxon chose to structure the acquisition through COPL as an intermediary because it had “concern over issues regarding U.S. anti-corruption laws” and believed that “Liberian shareholders/beneficial owners of [Broadway Consolidated] may have been government officials at the time of the allocation.” Id. at 20. The Report opined that “Exxon proposed to use COPL as a go-between that would, Exxon appears to have thought, shield it from any U.S. legal risks posed by Block 13.” Id. The Report described the complex movement of funds and property interests constituting Exxon’s purchase of development rights in Block 13. It also stated that COPL’s relationship with Broadway Consolidated may not have been fully at arm’s-length and called for an investigation of Exxon by authorities in the United States, Canada, the United Kingdom, and Liberia to determine whether Exxon had violated any anti-corruption laws. Id. at 27-28.

         In addressing the Liberian government’s role in the 2013 license transfers, the Report stated that NOCAL made “unusual, large payments” to Liberian government officials “in connection with the 2013 award of Block 13” and emphasized those payments made to members of the HTC, connecting the relative size of the payments, the definition of bribery in Liberian law, and NOCAL’s history of bribery payments in 2006 and 2007. Id. at 30. The Report also included a chart prepared by Global Witness that identified the roles six HTC and NOCAL officers played in the negotiations with Exxon and naming each of them.

         Global Witness sought pre-publication comments from the HTC and NOCAL officials; excerpts of those comments, which denied that the bonuses were bribes, were included in the Report. The Report acknowledged that “Global Witness has no evidence that Exxon directed NOCAL to pay Liberian officials, nor that Exxon knew such payments were occurring, ” id. at 31, and conceded that over 140 staff members received such bonuses, but concluded:

The vast majority of these payments were smaller than those made to HTC members by two orders of magnitude. Also, unlike payments to the HTC members, these staff payments were not made to people who signed the Exxon deal.

Id. at 32. Among a host of recommendations, the Report called for Liberian authorities to investigate “whether NOCAL violated Liberian law when it distributed payments in 2013 to officials who signed the Block 13 license, ” and for the Liberian government to “review its policies on bonuses paid to staff.” Id. at 35.

         C. Report Aftermath

         Shortly thereafter, several news organizations, including Newsweek and Front Page Africa, published summaries of the Report with headlines such as “Rex Tillerson’s Exxon Mobil Involved in Corrupt Oil Deals in Liberia, Investigation Reveals.” Compl. ¶ 72 (quoting Christina Maza, Rex Tillerson’s Exxon Mobil Involved in Corrupt Oil Deals in Liberia, Investigation Reveals, Newsweek, Mar. 29, 2018, available at http://bit.ly/2kCN5IU). As a result of the Report, the new President of Liberia, George Manneh Weah, appointed a Special Presidential Committee to investigate. Id. ¶ 74 (citing Report of the Special Presidential Committee Appointed to Examine the March 2018 Global Witness Report of the National Oil Company of Liberia (NOCAL) (2018) (Special Presidential Committee Report)). The Special Presidential Committee, which issued its own findings in May 2018, understood its mandate to be:

to examine the allegations of March 2018, made by Global Witness (GW), . . . that in negotiating the Concession [license] agreement between ExxonMobil and the Government of Liberia for Liberia’s offshore Oil Block LB13, some prominent Liberian government officials who led the negotiation received bribe in amounts ranging up to U.S. $35, 000 each.

Id. ¶ 75. It determined that the bonus payments were not bribes under Liberian law. Id. ¶ 81. However, the Special Presidential Committee recommended that the bonus payments to the six members of the HTC be returned. Id. ΒΆ 83. Plaintiffs believe there is no legal basis to ...


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