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(US Court Opinion As PDF) Plaintiff Yasser Abbas brings this defamation action against Foreign Policy Group and Jonathan Schanzer, the author of an article that appeared in Foreign Policy Magazine in June 2012. Pending before the Court are defendants’ motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and special motion to dismiss pursuant to the District of Columbia Anti-Strategic Lawsuits Against Public Participation Act of 2010 (the “Anti-SLAPP Act”), D.C. Code § 16-5502(a) (2012). Upon consideration of the motions, the responses and replies thereto, the amicus brief filed by the District of Columbia, the applicable law, and the entire record, the Court GRANTS defendants’ special motion to dismiss and DENIES defendants’ motion to dismiss pursuant to rule 12(b)(6) as moot. 1
US Court Opinion Exposes Abbas Son as a Thief
على الهواء مباشرة: نقاش مفتوح حول إبن الرئيس عباس بخسر قضية التشعير في بعد حرب قانونية
هل تضمن قرار المحكمة الأمريكية إتهام إبن الرئيس عباس بالسرقة؟؟ أنقر هنا لتقرأ الملف كاملا وستعرف كل شىء
هل تضمن قرار المحكمة الأمريكية إتهام إبن الرئيس عباس بالسرقة؟؟ أنقر هنا لتقرأ الملف كاملا وستعرف كل شىء
(US Court Opinion As PDF) Plaintiff Yasser Abbas brings this defamation action against Foreign Policy Group and Jonathan Schanzer, the author of an article that appeared in Foreign Policy Magazine in June 2012. Pending before the Court are defendants’ motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and special motion to dismiss pursuant to the District of Columbia Anti-Strategic Lawsuits Against Public Participation Act of 2010 (the “Anti-SLAPP Act”), D.C. Code § 16-5502(a) (2012). Upon consideration of the motions, the responses and replies thereto, the amicus brief filed by the District of Columbia, the applicable law, and the entire record, the Court GRANTS defendants’ special motion to dismiss and DENIES defendants’ motion to dismiss pursuant to rule 12(b)(6) as moot. 1
1 Because granting the Anti-SLAPP motion disposes of the entire action, the Court need not consider the motion to dismiss pursuant to Rule 12(b)(6) here.
I. BACKGROUND
A. Yasser Abbas
Yasser Abbas (“Plaintiff” or “Mr. Abbas”) is the son of Mahmoud Abbas (“M. Abbas”), the President of the Palestinian Authority (the “PA”). Compl. ¶ 9. He owns and operates many businesses throughout the Middle East: he is the chairman of Falcon Holding Group, which owns Falcon Global Telecommunications Services Company, Falcon General Investment Company, and Falcon Electrical Mechanical Company, an engineering company with offices in Gaza, Jordan, Qatar, the United Arab Emirates, and the West Bank that has done work for USAID in the past, Compl. ¶¶ 21, 28; he is the owner of Falcon Tobacco, Compl. ¶ 16; he is the chairman of the publicly traded Al-Mashreq Insurance Company, Compl. ¶ 31; and he is the managing director of the First Option Project Construction Management Company, which has offices in Amman, Tunis, Cairo, Montenegro, and Ramallah and has been awarded USAID funds. Compl. ¶ 32.
A. Yasser Abbas
Yasser Abbas (“Plaintiff” or “Mr. Abbas”) is the son of Mahmoud Abbas (“M. Abbas”), the President of the Palestinian Authority (the “PA”). Compl. ¶ 9. He owns and operates many businesses throughout the Middle East: he is the chairman of Falcon Holding Group, which owns Falcon Global Telecommunications Services Company, Falcon General Investment Company, and Falcon Electrical Mechanical Company, an engineering company with offices in Gaza, Jordan, Qatar, the United Arab Emirates, and the West Bank that has done work for USAID in the past, Compl. ¶¶ 21, 28; he is the owner of Falcon Tobacco, Compl. ¶ 16; he is the chairman of the publicly traded Al-Mashreq Insurance Company, Compl. ¶ 31; and he is the managing director of the First Option Project Construction Management Company, which has offices in Amman, Tunis, Cairo, Montenegro, and Ramallah and has been awarded USAID funds. Compl. ¶ 32.
Mr. Abbas also serves as a political emissary for his father’s regime, and often travels to other countries and international meetings in this capacity. Anti-SLAPP Mot. at 9-10 (citing Anti-SLAPP Mot., Jones Decl. Ex. 15, 16, 17, 18). He has previously acknowledged that his political involvement in the Palestinian Authority and his business success have engendered controversy. See, e.g. Anti-SLAPP Mot., Jones Decl. Ex. 6, Excerpts from an interview with Yasser Abbas in Ramallah (“Yasser Abbas Interview”), Part 3. Over the last few years, many questions have been raisedabout whether his business success and political ties are linked, though he has systematically denied any such allegations. Anti-SLAPP Mot. at 11-12; see, e.g., Jones Decl., Ex. 24 (Ike Seamans, What do Palestinians Do With Humanitarian Aid Money?, THE MIAMI HERALD, Jan. 25, 2003, at 7B (“Israeli military intelligence charges that Yasser Arafat and his cronies have $20 billion stashed in Swiss bank accounts and invested in foreign real estate. With PA financial help, Yasser Abbas, the prime minister’s son, joined the gravy train. He has gained control of the electronics industry, even though he’s a Canadian citizen who lives in Ramallah only a few months a year.”)); see also Jones Decl., Ex. 21, 22, 25, 26.
As public scrutiny over his business and political activity has increased, Mr. Abbas has used the threat of defamation litigation to counter bad press. Anti-SLAPP Mot. at 14-15. Between 2008 and 2010, Mr. Abbas and his family have filed defamation lawsuits or threatened to sue for libel on three separate occasions against an Israeli television channel, Reuters, and Al-Jazeera. Id. Mr. Abbas has also threatened to sue Richard Falk, the United Nations Special Rapporteur for the Palestinian Territories. Id.
As public scrutiny over his business and political activity has increased, Mr. Abbas has used the threat of defamation litigation to counter bad press. Anti-SLAPP Mot. at 14-15. Between 2008 and 2010, Mr. Abbas and his family have filed defamation lawsuits or threatened to sue for libel on three separate occasions against an Israeli television channel, Reuters, and Al-Jazeera. Id. Mr. Abbas has also threatened to sue Richard Falk, the United Nations Special Rapporteur for the Palestinian Territories. Id.
B. Foreign Policy Magazine and Jonathan Schanzer
Foreign Policy is an online and print publication is a “forum for ‘international news and opinions’ covering topics on global politics and economics.” Anti-SLAPP Mot. at 15; Compl. ¶ 5. The magazine contains an “Arguments” section, which is described as: “Polemical, controversial, and powerful, FP arguments provide timely insight on stories making headlines around the world.” Anti-SLAPP Mot. at 16. Foreign Policy also publishes FP Arabic on a bimonthly basis in partnership with the Gulf Strategic Studies Center in Qatar, which contains translated pieces from Foreign Policy and is distributed in the Middle East. Compl. ¶ 7.
Jonathan Schanzer is the Vice President for Research at the Foundation for Defense of Democracies (“FDD”), a non-partisan group that focuses on national security and foreign policy. Anti-SLAPP Mot., Declaration of Jonathan Schanzer (“Schanzer Decl.”) at ¶ 1. Prior to joining FDD, Mr. Schanzer worked as a terrorism finance analyst at the U.S. Department of the Treasury and at several other U.S. think tanks. He has also published two books about Hamas and the Middle East and regularly publishes articles in American and international publications, including Foreign Policy. Schanzer Decl. ¶¶ 2-5. Mr. Schanzer has also testified before Congress twice regarding the issue of corruption in the PA. 2 See Compl. ¶¶ 56-77.
2 Mr. Abbas describes Mr. Schanzer’s Congressional testimony in the Complaint as evidence of malice on the part of Mr. Schanzer. Because the Court finds that contested portions of the Commentary are not defamatory, see infra Section II.C.2, the Court does not reach the question of malice on the part of Defendants.
C. The June 5, 2012 Commentary in Foreign Policy Magazine
On June 5, 2012, an article (the “Commentary”) written by Mr. Schanzer was published in Foreign Policy magazine. Compl. ¶ 10. The article is entitled “The Brothers Abbas: Are the sons of the Palestinian President growing rich off their father’s system?” and appeared in the “Arguments” section of the magazine. It can be accessed by clicking on the “Arguments” link on the FP website. Id.; Defs.’ MTD, Ex. A. In the introduction of the article, Mr. Schanzer writes:
In the wake of the Arab Spring, U.S. leaders have promised to reverse the United States’ long reliance on autocratic, unrepresentative leaders who enrich themselves at the expense of their citizens. There’s only one problem: Just as top American officials have been making these lofty promises, new details are emerging of how close family members of Palestinian leader Mahmoud Abbas, a major U.S. partner in the Middle East, have grown wealthy. Have they enriched themselves at the expense of regular Palestinians – and even U.S. taxpayers?
Defs.’ MTD, Ex. A at 2. Mr. Schanzer then discusses Mr. Abbas, his family, and their business and political interests.3
3 In his Complaint, Mr. Abbas alleged that a number of statements in the Commentary regarding his business interests and political activity were libelous. See Compl. ¶¶ 14, 16, 21, 22, 28, 30, 32, 35, 37, 39, 41. However, in his Opposition, Mr. Abbas considerably narrowed his libel claim and conceded that “the article’s reference to these businesses is not the basis for [his] libel claim.” Opp’n to MTD at 10. In their motion to dismiss, Defendants addressed these statements and argued that they were not defamatory. See Defs.’ MTD at 15-21. Therefore, the Court will treat any allegations of libel relating to these portions of the Commentary in Plaintiff’s complaint as conceded. See Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (“It is well disputed in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.”) (citing FDIC v. Bender, 127 F.3d 58, 67-68 (D.C. Cir. 1997)).
Mr. Schanzer does not paint Mr. Abbas or his family in a particularly flattering light. He writes of allegations of corruption in the PA and the “conspicuous wealth” of Mr. Abbas and his brother, which Mr. Schanzer claims has “become a source of quiet controversy in Palestinian society since at least 2009.” Defs.’ MTD, Ex. A. He also details allegations made by some in the region against Mr. Abbas and his family, including an allegation by Mohammad Rachid, a former economic advisor to the late PA leader Yasir Arafat who is under investigation for corruption, that President Abbas has “socked away $100 million in ill-gotten gains.” Defs.’ MTD, Ex. A at 2; Compl. ¶ 14.
He also discusses conversations he had with Palestinians during a research trip to Ramallah in 2011, who told him that “the Abbas family dynasty is common knowledge” in the region, but that it was rarely discussed “thanks to growing fear of retribution by PA security officers, who have apprehended journalists and citizens for openly challenging President Abbas’s authority. Defs.’ MTD, Ex. A at 3; Compl. ¶ 37. The online version of the article contains approximately 31 highlighted words or phrases that are hyperlinks to the underlying source material for statements made in the article, which include articles from other publications and company websites. 4 Anti-SLAPP Mot. at 17.
4 The bolded words in excerpts of the Commentary in this opinion represent hyperlinks in the on-line version.
Abbas provided the basis to do so. Foreign Policy also offered Mr. Abbas the opportunity to respond in print. Id. Through his counsel, Mr. Abbas declined and filed this action on September 20, 2012. Id. at 18. On November 5, 2012 defendants filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) and a special motion to dismiss pursuant to the District’s Anti-SLAPP Act. The District of Columbia moved for leave to file an amicus curiae brief, which the Court granted. The District filed an amicus brief on December 22, 2012 arguing that the Anti-SLAPP Act is applicable in a federal court sitting in diversity. These motions are now ripe for determination by the Court.
II. Discussion
A. The Anti-SLAPP Act
A. The Anti-SLAPP Act
A SLAPP, or strategic lawsuit against public participation, is a civil action that arises out of a defendant’s communications to government bodies or the public on an issue of public concern. See Brief of Amicus Curiae District of Columbia (“D.C. Amicus Brief”) at 1. The District’s Committee on Public Safety and the Judiciary has noted that SLAPPs “are often without merit, but achieve their filer’s intention of punishing or preventing opposing points of view, resulting in a chilling effect on the exercise of constitutionally protected rights.” Rep. of the D.C. Comm. on Public Safety and the Judiciary on Bill 18-893 (Nov. 19, 2010) (“Comm. Report”)) at 4. By imposing upon defendants the burden of defending against a lawsuit, the Committee concluded that “litigation itself is the plaintiff’s weapon of choice,” Comm. Report at 4, one that was “wielded to chill the speech of those who would otherwise speak out on a matter of public interest,” D.C. Amicus Brief at 1. The Committee also found that the impact of these lawsuits was not limited to defendants against whom a suit had been filed, but also prevented others from voicing concerns regarding issues of public concern. Comm. Report at 4.
To combat this problem, the Council passed the Anti-SLAPP Act in 2010. The protections offered in the Act “follow[] ‘the lead of other jurisdictions, which have similarly extended absolute or qualified immunity to individuals engaged in protected actions’” by enacting similar Anti-SLAPP legislation. Farah, 863 F. Supp. 2d at 36 (quoting Comm. Report at 4). The Act aims to address such concerns “by incorporating substantive rights that allow a defendant to more expeditiously, and more equitably, dispense of a SLAPP.” Id.
To that end, the Anti-SLAPP Act provides in pertinent part:
- (a) A party may file a special motion to dismiss any claim arising from an act in furtherance of the right of advocacy on issues of public interest within 45 days after service of the claim.
- (b) If a party filing a special motion to dismiss under this section makes a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest, then the motion shall be granted unless the responding party demonstrates that the claim is likely to succeed on the merits, in which case the motion shall be denied.
D.C. Code § 16-5502(a)-(b). The Act also provides that “[i]f the special motion to dismiss is granted, dismissal shall be with prejudice.” Id. That is, if the defendant meets the burden of showing that the claims at issue arise from the type of activity protected by the Act, the claims must be dismissed with prejudice unless plaintiff can show a likelihood of success on the merits.
The Act applies to claims based on any oral or written statement made:
- (i) In connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; or
- (ii) In a place open to the public or a public forum in connection with an issue of public interest.
D.C. Code § 16-5502(a)-(b). The Act also provides that “[i]f the special motion to dismiss is granted, dismissal shall be with prejudice.” Id. That is, if the defendant meets the burden of showing that the claims at issue arise from the type of activity protected by the Act, the claims must be dismissed with prejudice unless plaintiff can show a likelihood of success on the merits.
The Act applies to claims based on any oral or written statement made:
- (i) In connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; or
- (ii) In a place open to the public or a public forum in connection with an issue of public interest.
D.C. Code § 16-5501(1)(A). It applies to “[a]ny other expression or expressive conduct that involves petitioning the government or communicating views to members of the public in connection with an issue of public interest.” Id. An “issue of public interest” is defined as one that is “related to health or safety; environmental, economic, or community well-being; the District government; a public figure; or a good, product, or service in the marketplace.” Pursuant to the Act, an “issue of public interest” “shall not be construed to include private interests, such as statements directed primarily toward protecting the speaker’s commercial interests rather than toward commenting on or sharing information about a matter of public significance.” Id. § 16-5501(3).
In construing the Act, the Court cannot rely on guidance from the D.C. Court of Appeals, which has not yet issued a published opinion interpreting the statute. Where, as here, “the substantive law of the forum state is uncertain or ambiguous, the job of federal courts is carefully to predict how the highest court of the forum state would resolve the uncertainty or ambiguity.” Travelers Ins. Co. v. 633 Third Assocs., 14 F.3d 114, 119 (2d. Cir. 1994). With this in mind, the Court notes that the Committee Report prepared on the Anti-SLAPP Act emphasized that the statute “followed the model set forth in a number of other jurisdictions.” Comm. Report at 1.
The D.C. Court of Appeals has accorded great weight to such reports in interpreting other D.C. statutes. See, e.g. Dist. of Columbia v. Place, 892 A.2d 1008, 1113 (D.C. 2006); Carter v. State Farm Mut. Auto. Ins. Co., 808 A.2d 466, 471 (D.C. 2002). Therefore, where necessary and appropriate, the Court will look to decisions from other jurisdictions (particularly California, which has a well-developed body of case law interpreting a similar California statute) for guidance in predicting how the D.C. Court of appeals would interpret the District’s Anti-SLAPP statute. See Boley, 2013 U.S. Dist. LEXIS 88494 at *8-9.
B. Applicability of the Anti-SLAPP Act in Federal Diversity Actions
The parties dispute whether the District’s Anti-SLAPP Act applies in a federal court sitting in diversity. Defendants contend that because the Act confers substantive protections under the District’s tort law, it is applicable in federal court. Anti-SLAPP Mot. at 21; D.C. Amicus Brief at 5-6. Plaintiff, however, argues that the Anti-SLAPP Act is procedural and thus inapplicable because a federal court must apply federal procedural laws. See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938); Anti-SLAPP Opp’n at 3-9.
While the applicability of the Anti-SLAPP Act in a federal court sitting in diversity has not been addressed by the D.C. Circuit, other circuits have found that similar state statutes apply in federal court. See Godin v. Schencks, 629 F.3d 79 (1st Cir. 2010); U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir. 1999); Henry v. Lake Charles Am. Press, LLC, 566 F.3d 164 (5th Cir. 2009) (adopting the reasoning of the 9th Circuit in Newsham and ruling that a similar Louisiana statute was substantive and therefore applied in a federal court). Continue reading.
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