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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 20, 2007 Decided July 24, 2007
No. 06-7095
MILAN JANKOVIC, A/K/A PHILIP ZEPTER, ET AL.,
APPELLANTS
v.
INTERNATIONAL CRISIS GROUP, A NON-PROFIT
ORGANIZATION, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 04cv01198)
William T. O’Brien argued the cause for appellants. With
him on the briefs were Lisa M. Norrett and Malcolm I. Lewin.
Amy L. Neuhardt argued the cause for appellees. With her
on the brief were Jonathan L. Greenblatt and Cynthia P.
Abelow.
2
Before: ROGERS, GRIFFITH and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: In this diversity action, Milan
Jankovic, who goes by the name Philip Zepter, and two of his
related business entities — Fieldpoint B.V. and United Business
Activities Holding, A.G. — appeal the dismissal of their
complaint for defamation, tortious interference with business
expectancy, and false light invasion of privacy against
International Crisis Group (“ICG”) and one of its employees,
James Lyon. At issue are three documents that allegedly link
Philip Zepter and his business interests to Serbian president
Slobodan Milosevic, who was put on trial as a war criminal
before his death. The district court found that the presence of
Lyon in the case destroyed diversity. After the complaint was
amended to exclude Lyon, the district court, applying District of
Columbia law, dismissed claims relating to two of these
documents — a report authored by ICG (“Report 141”) and an
email sent by Lyon — because the statute of limitations had
expired. The district court dismissed the remaining claims after
finding that the third document, ICG’s Report 145, was not
capable of defamatory meaning and could not support claims for
the related torts. We affirm the district court’s dismissal of the
original complaint and its dismissal of the claims relating to
Report 141 and the Lyon email. However, because one of the
passages in Report 145 is capable of defamatory meaning, we
reverse the dismissal of the amended complaint in part.
I.
ICG is a nonprofit organization registered under District of
Columbia law whose mission is “to prevent and resolve deadly
conflict.” To this end, it produces analytical reports,
3
newsletters, briefing papers, and other publications targeted at
influencing and advising international decisionmakers. Among
these publications are two reports. On March 18, 2003, a report
entitled Serbia after Djindjic was issued bearing the ICG logo
above the words “Belgrade/Brussels.” This report, numbered
141, recommends various reforms in the wake of the
assassination of the Serbian premier. Report 145, issued July
17, 2003, is a follow-up entitled Serbian Reform Stalls Again,
again with the ICG logo and “Belgrade/Brussels” on the cover.
Both reports reference Philip Zepter, the individual, as well as
the Zepter Group of businesses. Citing Belgrade media sources,
Report 141 asserts that the Zepter Group “allegedly provides
cover for money laundering and weapons shipments.” Report
145 lists Philip Zepter as a member of the “new Serbian
oligarchy” that benefitted from close ties to Milosevic and
continues to prosper through unchecked access to public
resources. Additionally, according to the amended complaint,
James Lyon sent an email that disseminated a six-paragraph
article of unknown origin that reported that “Zepter operated in
front companies for State Security, . . . smuggling weapons (to
Al-Qaeda among others) and laundering money.” Lyon was
ICG’s “main investigator and Project Director for the Balkans”
and the “Director of ICG Serbia” when Reports 141 and 145
were issued.
Philip Zepter and the corporations (collectively “Zepter”)
filed suit on January 12, 2004, in the Court of First Instance of
Brussels, Belgium. The complaint named James Lyon of Provo,
Utah, and “[t]he non-profit association INTERNATIONAL
CRISIS GROUP, in short ICG, entered in the register of
enterprises . . . with registered office located in . . .
BRUSSELS.” However, as Zepter would later learn, this was
not the non-profit organization responsible for the publications.
According to Zepter’s amended complaint, “[i]n responding
initially, in Brussels, to the Brussels Action complaint, ICG for
4
the first time represented that there were two ICG corporate
entities, one in Brussels and another in the United States.” Am.
Compl. ¶ 72. In response to an action under 28 U.S.C. § 1782
to conduct discovery in the United States for the Belgian action,
filed on June 18, 2004, Zepter learned that the organization it
sued in Belgium, which is incorporated under Belgian law, is
distinct from the International Crisis Group that employs Lyon
and issued Reports 141 and 145. As ICG now explains, it is
incorporated in Washington, D.C., but headquartered in
Brussels, with offices worldwide. See Appellees’ Br. at 3. The
Belgian entity, which it calls International Crisis Group Agence
Internationale Sans but Lucratif (“AISBL”), is “an inactive
corporation” with “no paid employees and . . . no responsibility
for publishing ICG’s reports.” Id. at 4.
On July 15, 2004, Zepter filed a complaint in the United
States District Court for the District of Columbia against ICG
incorporated here. On August 23, 2005, the district court
dismissed that complaint without prejudice on the ground that it
was clear Lyon is domiciled in Belgrade — and not Provo, Utah
— therefore destroying complete diversity because a stateless
citizen is not diverse with an alien like Zepter. Alternatively,
the district court noted that it was clear the court lacked personal
jurisdiction over Lyon. On September 15, 2005, Zepter filed an
amended complaint that removed Lyon as a defendant. ICG
moved to dismiss, and on May 1, 2006, the district court granted
the motion, finding that the statute of limitations had expired,
without any valid defenses, as to Report 141 and the Lyon email
and that the claims related to Report 145 failed as a matter of
law. See Jankovic v. Int’l Crisis Group, 429 F. Supp. 2d 165
(D.D.C. 2006).
5
II.
Zepter first contends that the district court erred by
dismissing the original complaint for want of subject-matter
jurisdiction because Lyon is actually domiciled in Utah, and
because the district court should have authorized jurisdictional
discovery to prove this point. We need not resolve these
disputes, however, because Zepter does not challenge on appeal
the district court’s alternative ruling that Lyon lacked sufficient
ties to the District of Columbia to warrant an exercise of
personal jurisdiction. Personal jurisdiction is “‘an essential
element of the jurisdiction of a district . . . court,’ without which
the court is ‘powerless to proceed to an adjudication.’” Ruhrgas
AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999) (quoting
Employers Reins. Corp. v. Bryant, 299 U.S. 374, 382 (1937)).
A complaint may be dismissed for lack of personal jurisdiction
without settling whether subject-matter jurisdiction exists.
Because Zepter has waived any challenge to personal
jurisdiction by failing to raise the issue, see Corson & Gruman
Co. v. NLRB, 899 F.2d 47, 50 n.4 (D.C. Cir. 1990), this court
cannot upset the district court’s dismissal of the original
complaint.
Under District of Columbia law, which applies to this
diversity action, claims of defamation are subject to a one-year
limitations period. D.C. CODE § 12-301(4). No statutory period
is provided for tortious interference with business expectancy or
false light invasion of privacy, but where, as here, “a stated
cause of action is ‘intertwined’ with one for which a limitations
period is prescribed, [courts operating under District of
Columbia law] apply the specifically stated period.” Mittleman
v. United States, 104 F.3d 410, 415 (D.C. Cir. 1997).
Only Report 145 was published within a year of the
initiation of this lawsuit on July 15, 2004. Zepter contends,
6
however, that there is a valid defense to the statute of limitations
under the doctrines of lulling, equitable tolling, and equitable
estoppel. Alternatively, Zepter maintains that the foreseeable
republication of ICG’s reports on the Internet resets the one-year
clock. The district court rejected these defenses and our review
is de novo. See Chung v. U.S. Dep’t of Justice, 333 F.3d 273,
278 (D.C. Cir. 2003). We agree with the district court.
A defendant who engages in “inequitable conduct” can be
equitably estopped from invoking the statute of limitations. Id.
at 278. Zepter contends that the doctrine applies here because
ICG “actively concealed the identity of the authorship of the
Publications at issue and thwarted the Zepter Plaintiffs’
discovery attempts.” Appellants’ Br. at 23. At the motion-to-
dismiss stage, the court must accept this allegation as true. See
Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996) (per
curiam). Nonetheless, ICG is not equitably estopped from
pleading the statute of limitations. District of Columbia law
distinguishes between a party that conceals the existence of a
cause of action and a party that conceals its own identity. Under
Chappelle’s Estate v. Sanders, 442 A.2d 157, 158-59 (D.C.
1982), equitable estoppel encompasses only the former. The
Chappelle rule remains the law of the District of Columbia. See
Cevenini v. Archbishop of Wash., 707 A.2d 768, 773-74 (D.C.
1998); Diamond v. Davis, 680 A.2d 364, 380 n.14 (D.C. 1996).
Zepter does not maintain that ICG did anything to conceal the
existence of Zepter’s claim.
The similar doctrine of equitable tolling does not concern
the conduct of the defendant but rather applies when the plaintiff
“despite all due diligence . . . is unable to obtain vital
information bearing on the existence of his claim.” Chung, 333
F.3d at 278 (quoting Currier v. Radio Free Europe/Radio
Liberty, Inc., 159 F.3d 1363, 1367 (D.C. Cir. 1998)). This
defense of Zepter’s fares no better, as the District of Columbia
7
Court of Appeals has made clear that “good-faith mistakes of
forum” do not qualify for equitable tolling even if “the
defendant was on notice of the claim as of the initial filing in an
improper forum that occurred within the limitations period.”
Sayyad v. Fawzi, 674 A.2d 905, 906 (D.C. 1996) (per curiam).
Similar to equitable estoppel, the doctrine of lulling applies
when the defendant “ha[s] done something that amounted to an
affirmative inducement to plaintiffs to delay bringing action,”
Bailey v. Greenberg, 516 A.2d 934, 937 (D.C. 1986) (quoting
Hornblower v. George Wash. Univ., 31 App. D.C. 64, 75
(1908)), as when a defendant promises to settle a dispute outside
of court, see, e.g., id. at 939; East v. Graphic Arts Indus. Joint
Pension Trust, 718 A.2d 153, 156-57 (D.C. 1998). At most,
Zepter contends that ICG’s inaction delayed its filing of this
lawsuit. Because Zepter alleges no specific act of affirmative
inducement, the doctrine of lulling is unavailing.
Finally, Zepter maintains that foreseeable republication of
a libelous document by a third-party resets the limitations clock
and that the district court should have allowed discovery “to
enable [Zepter] to ascertain the dates of those republications and
present them to the [district court].” Appellants’ Br. at 35. Like
most common-law jurisdictions, the District of Columbia has
adopted the modern “single publication” rule regarding the
accrual of libel claims. See Mullin v. Wash. Free Weekly, Inc.,
785 A.2d 296, 298 n.2 (D.C. 2001); Ogden v. Ass’n of U.S.
Army, 177 F. Supp. 498 (D.D.C. 1959); RESTATEMENT
(SECOND) OF TORTS § 577A. Thus, “for purposes of the statute
of limitations in defamation claims, a book, magazine, or
newspaper has one publication date, the date on which it is first
generally available to the public.” Mullin, 785 A.2d at 298 n.2.
Copies of the original are still part of the single publication but
republication in a new edition creates a new publication on the
8
rationale that the intent is to reach a new audience. See
RESTATEMENT § 577A cmt. d & illus. 5-6.
The District of Columbia courts have not specifically
applied the single publication rule to the posting of identical
material by a third-party on the Internet. Courts in other
jurisdictions have applied the single publication rule to
allegations of defamation on the Internet but have not addressed
republication on third-party websites. See In re Davis, 347 B.R.
607, 611-12 (W.D. Ky. 2006); Churchill v. State, 876 A.2d 311,
316-19 (N.J. Super. Ct. App. Div. 2005); Firth v. State, 706
N.Y.S.2d 835, 842-43 (Ct. Cl. 2000). The single publication
rule was designed as an accommodation to new forms of
communication, and in applying the rule to the Internet, the
court must be mindful of the rule’s purpose, which according to
the Restatement consists of “avoiding multiplicity of suits, as
well as harassment of defendants and possible hardship upon the
plaintiff himself.” RESTATEMENT § 577A cmt. d. Here, Zepter
alleges that, as a result of ICG’s distribution of Report 141, its
defamatory language has been “incorporated in and further
disseminated through various other websites and publications.”
Am. Compl. ¶ 65. In the print media world, the copying of an
article by a reader — even for wide distribution — does not
constitute a new publication. See RESTATEMENT § 577A cmt. d
& illus. 6. The equivalent occurrence should be treated no
differently on the Internet. At best, the third-party reproductions
alleged by Zepter constitute “mere continuing impact from past
violations [that] is not actionable” as a new cause of action,
Knox v. Davis, 260 F.3d 1009, 1013-14 (9th Cir. 2001) (internal
quotation marks omitted) (citing Del. State Coll. v. Ricks, 449
U.S. 250 (1980)). Notably, Zepter does not allege that ICG
updated the content of Report 141 or took steps beyond its initial
publication to expand the audience for its Report, and the court
need not address these possibilities. See Sapna Kumar,
Comment, Website Libel and the Single Publication Rule, 70 U.
9
CHI. L. REV. 639, 657-61 (2003). Based on Zepter’s allegations,
ICG can be held to account for only a single publication of
Report 141, but these claims are time-barred.
III.
This leaves only the claims stemming from Report 145,
entitled Serbian Reform Stalls Again, which was issued on July
17, 2003. Zepter faults three passages in the 28-page report that
reference “Zepter Banka,” “Filip Zepter,” and “a Zepter
company,” respectively. Report 145 does not mention either of
the corporate appellants, Fieldpoint B.V. or United Business
Activities Holding, A.G.
A plaintiff claiming defamation must show:
(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.
Croixland Props. L.P. v. Corcoran, 174 F.3d 213, 215 (D.C. Cir.
1999) (quoting Crowley v. N. Am. Telecomms. Ass’n, 691 A.2d
1169, 1172 n.2 (D.C. 1997)). As a threshold issue, Zepter
contends that ICG relied upon exhibits beyond the scope of the
amended complaint, and the district court’s reliance, in turn,
would require converting the Rule 12 motion to a Rule 56
summary judgment motion and affording discovery to Zepter.
The extrinsic evidence, however, is public record information
from Zepter’s filings in New York seeking discovery in the
10
Belgian action. Zepter opposes consideration of what he himself
filed in court. However, such materials may properly be
considered on a motion to dismiss. See Marshall County Health
Care Auth. v. Shalala, 988 F.2d 1221, 1222-23 (D.C. Cir. 1993).
Turning, then, to the merits of the district court’s dismissal, the
passages in Report 145 raise distinct issues.
A.
The first passage appears in a discussion of the continued
influence of the Bezbednosno-Informativna Agencija (“BIA”),
Serbia’s state-security agency. The passage reads:
The BIA as a whole is deeply compromised by
criminal activities as well as numerous other illegal
actions under Milosevic. It appears to have shadowy
connections to at least two banks — Komercijalna
Banka and Kapital Banka — and maintains close ties
with a third, Zepter Banka. It has been involved in the
weapons trade, through such front companies as
Grmec. Its most dangerous component is the so-called
military line, composed of former [Serbian
Counterintelligence] officers who transferred from the
army in the early 1990s. Many of these are engaged in
economic activities connected to some of the
mentioned banks.
Report 145, at 15 (footnotes omitted). The district court
concluded that this statement was not “concerning the plaintiffs”
because it references Zepter Banka instead of Philip Zepter,
Fieldpoint, or United Business. Jankovic, 429 F. Supp. 2d at
174-76.
“To satisfy the ‘of and concerning’ element, it suffices that
the statements at issue lead the listener to conclude that the
speaker is referring to the plaintiff by description, even if the
11
plaintiff is never named or is misnamed.” Croixland, 174 F.3d
at 216. In Croixland, the defendants stated that the owner of a
race track was “connected to organized crime” but misidentified
the race track owner. Id. at 215-16. This court held that a
complaint filed by the actual race track owner should not be
dismissed because “[e]ven if the lobbyists misidentified the
owner of the facility, it did not remove the taint to the true
owner,” especially after “[d]rawing favorable inferences for the
non-moving party and viewing the alleged remarks from the
perspective of the listeners.” Id. at 217 (citations omitted). An
action could also have been sustained by the company named in
the statements that did not actually own the race track. See Peck
v. Tribune Co., 214 U.S. 185, 188-89 (1909).
As the district court recognized, the first passage of Report
145 neither mentions Philip Zepter directly nor refers to him
indirectly, except to the extent that he shares a name with his
company. So Croixland does not help Philip Zepter; rather, the
question is whether the namesake of a corporation can be
defamed when false misdeeds are attributed to his company. In
the reverse situation, the Restatement provides that “[a]
corporation is not defamed by communications defamatory of its
officers, agents or stockholders unless they also reflect discredit
upon the method by which the corporation conducts its
business.” RESTATEMENT § 561 cmt. b.
Stated generally, “[d]efamation is personal; . . . [a]llegations
of defamation by an organization and its members are not
interchangeable. Statements which refer to individual members
of an organization do not implicate the organization. By the
same reasoning, statements which refer to an organization do not
implicate its members.” Provisional Gov’t of New Afrika v.
ABC, Inc., 609 F. Supp. 104, 108 (D.D.C. 1985) (citation
omitted). This principle is not absolute, of course. If, for
example, one person is solely in charge of corporate decision
12
making, an attack on a corporation would vicariously attack the
decision maker. See, e.g., Brayton v. Crowell-Collier Publ’g
Co., 205 F.2d 644, 645 (2d Cir. 1953); Caudle v. Thomason, 942
F. Supp. 635, 638 (D.D.C. 1996). But matters that might
“reflect[] poorly upon an individual” are not necessarily
“concerning” that person. Patzer v. Liberty Commc’ns, Inc., 650
P.2d 141, 143 (Or. Ct. App. 1982).
Applying this standard, the first excerpt concerns neither
Fieldpoint nor United Business. Their connection is that
Fieldpoint owns the Zepter trademarks and United Business
distributes Zepter products under these trademarks. Fieldpoint
and United Business are essentially investors in the Zepter
name. But “[t]he mere fact that a publication might injure the
investors in a business does not give rise to a claim for
defamation in those investors unless the publication appears to
refer to the investors individually.” AIDS Counseling & Testing
Ctrs. v. Group W Television, Inc., 903 F.2d 1000, 1005 (4th Cir.
1990).
Nor could the excerpt be deemed to concern Philip Zepter
personally. The amended complaint emphasizes the
expansiveness of the Zepter enterprise:
[t]he Zepter Group is now a global enterprise with
sales through separate companies based in more than
fifty countries on five continents across the world, and
with a network of more than 2,500 regular employees,
100,000 sales consultants, eighty-nine shops, and more
than fifty pavillions located in major cities throughout
the world.
Am. Compl. ¶ 14. Accepting this as true, it cannot be the case
that a reasonable reader of the first excerpt of Report 145 would
conclude that Philip Zepter personally had engaged in illicit
13
activities simply because a bank bearing his name — one of
many banks in the Zepter Group, see id. ¶ 24 — “maintains
close ties with” Serbian state security.1
B.
The second passage discusses the “New Serbian Oligarchy.”
Three paragraphs are relevant:
The unwillingness to continue the crackdown
reflects the power of the Milosevic-era financial
structures that — with the rigid oversight once
provided by the dictator removed — have transformed
themselves into a new Serbian oligarchy that finances
many of the leading political parties and has
tremendous influence over government decisions.
Some of the companies were originally formed as
fronts by the State Security or Army
Counterintelligence (KOS), while others operated at
the direct pleasure of the ruling couple. Under
Milosevic, many of these companies profited from
special informal monopolies, as well as the use of
privileged exchange rates. In return, many of them
financed the regime and its parallel structures.
1
Alternatively, Zepter contends that he should have been
allowed to amend his complaint a second time in order to allege
additional facts. ICG responds that Zepter never requested leave to
amend in the district court, and Zepter offers no reply. Zepter does not
seek to amend the complaint to assure the court of its jurisdiction. See
28 U.S.C. § 1652; Abigail Alliance for Better Access to Developmental
Drugs v. von Eschenbach, 469 F.3d 129, 132 (D.C. Cir. 2006).
Therefore, because Zepter did not raise this issue before the district
court, it has been waived. See Yee v. City of Escondido, 503 U.S. 519,
533-38 (1992); District of Columbia v. Air Fla., Inc., 750 F.2d 1077,
1084 (D.C. Cir. 1984).
14
Some of the individuals and companies are well
known to average Serbs: [fifteen individuals and their
companies, including] Zepter (Milan Jankovic, aka
Filip Zepter) . . . are but some of the most prominent.
Because of the support they gave to Milosevic and the
parallel structures that characterised his regime, many
of these individuals or companies have at one time or
another been on EU visa ban lists, while others have
had their assets frozen in Europe or the US.
In the popular mind, they and their companies
were associated with the Milosevic regime and
benefited from it directly. The [Democratic Opposition
of Serbia] campaign platform in September 2000
promised that crony companies and their owners would
be forced to answer for past misdeeds. Few of the
Milosevic crony companies have been subjected to
legal action, however. The enforcement of the
‘extra-profit’ law is often viewed as selective and there
have been only a handful of instances in which back
taxes, perhaps 65 million Euros worth, have been
collected. Most disturbing is the public’s perception
that — at a time when the economy is worsening —
these companies’ positions of power, influence and
access to public resources seem to have changed very
little.
Report 145, at 17-18 (footnotes omitted).
Again, this passage makes no mention of Fieldpoint or
United Business. The broad mention of Zepter is not sufficient
to render the passage defamatory as to Fieldpoint and United
Business. “When a statement refers to a group, a member of that
group may claim defamation if the group’s size or other
15
circumstances are such that a reasonable listener could conclude
the statement referred to each member or ‘solely or especially’
to the plaintiff.” Browning v. Clinton, 292 F.3d 235, 247 (D.C.
Cir. 2002) (quoting Serv. Parking Corp. v. Wash. Times Co., 92
F.2d 502, 506 (D.C. Cir. 1937)). The Zepter Group is an
expansive global enterprise, and there are no indications that
Fieldpoint or United Business were “solely or especially”
targeted by this statement.
As to Philip Zepter, this passage presents questions about
what qualifies as a defamatory statement. When confronted with
a motion to dismiss, a court must evaluate “[w]hether a
statement is capable of defamatory meaning,” a question of law.
Weyrich v. New Republic, Inc., 235 F.3d 617, 627 (D.C. Cir.
2001). Applying District of Columbia law, “[a] statement is
‘defamatory’ if it tends to injure the plaintiff in his trade,
profession or community standing, or lower him in the
estimation of the community.” Moss v. Stockard, 580 A.2d
1011, 1023 (D.C. 1990). An “allegedly defamatory remark must
be more than unpleasant or offensive; the language must make
the plaintiff appear ‘odious, infamous, or ridiculous.’” Howard
Univ. v. Best, 484 A.2d 958, 989 (D.C. 1984). The district court
concluded that this passage “does not rise to the ‘odious,
infamous, or ridiculous’ level.” Jankovic, 429 F. Supp. 2d at
178.
Although this passage has numerous qualifiers — for
example, the Report says only that “some” of the companies
were fronts for state security — we are unable to say that a
reader of this passage could not reasonably conclude that Philip
Zepter, personally, was a “crony” of Milosevic who supported
the regime in exchange for favorable treatment. See Heard v.
Johnson, 810 A.2d 871, 886 (D.C. 2002). If this tie is
sufficiently “odious, infamous, or ridiculous,” then the
complaint has properly stated a cause of action for defamation.
16
The district court concluded that because Report 145 does not
mention “war crimes or ethnic cleansing by Milosevic or the
Serbian Government,” the “allegations of mutual support”
should be described as “political, not criminal” and therefore not
capable of defamatory meaning. Jankovic, 429 F. Supp. 2d at
177. Merely associating somebody with a foreign government
would not ordinarily be defamatory, but in Southern Air
Transport, Inc. v. ABC, Inc., 877 F.2d 1010 (D.C. Cir. 1989),
this court acknowledged that “[a]n inference that [a plaintiff
company] was engaged in dealings with the [apartheid]
government of South Africa clearly would have a defamatory
meaning because of the intense antipathy felt by a great number
of Americans towards South Africa.” Id. at 1015. In that light,
the passage could lead a reasonable reader to conclude that
Philip Zepter was actively in alliance with Milosevic and his
regime, and so, Philip Zepter has made sufficient allegations to
establish a prima facie case of defamation. ICG objects,
however, that various privileges and protections defeat Zepter’s
claims, and we will remand the claims related to this second
passage for the district court, in the first instance, to address the
applicability and merits of the Opinion and Fair Comment
Protection, the Fair Report Privilege, or the Neutral-Reportage
Doctrine.
C.
The third passage is brief:
Two other individuals with close ties to Milosevic-
era financiers hold key positions of influence within
the Premier Zivkovic’s cabinet. The chief of staff,
Nemanja Kolesar, is a former employee of Delta, while
Zoran Janjusevic, an advisor, is a former employee of
both State Security and a Zepter company.
17
Report 145, at 18. The amended complaint alleges that it was
defamatory to assert that Philip Zepter “holds a key position of
influence.” Am. Compl. ¶ 59. However, Zepter appears to
misread the passage, which refers to “a former employee of . . .
a Zepter company,” not to Philip Zepter himself. Hence, this
statement is not “of and concerning” Philip Zepter, Fieldpoint,
or United Business, and the district court was correct to dismiss
the related allegations.
D.
In addition to his defamation claims, Zepter alleges tortious
interference with business expectancy and false light invasion of
privacy. Am. Compl. ¶¶ 95-119. The district court found that
“because all of the plaintiffs’ claims are rooted in the same
alleged defamatory conduct, they must all be dismissed for the
reasons their defamation claims cannot be maintained.”
Jankovic, 429 F. Supp. 2d at 179. As to the first and third
excerpts in Report 145, this is true; statements not concerning a
plaintiff do not affront privacy rights or business expectancies.
However, as to the second excerpt, the standards for defamation
and false light privacy are not identical.
The District of Columbia follows the Restatement position
that:
To prevail on a false light claim under District of
Columbia law, appellant must show that (a) the
published material places appellant in a false light
which “would be highly offensive to a reasonable
person,” and (b) “the actor had knowledge of or acted
in reckless disregard as to the falsity of the publicized
matter and the false light in which the other would be
placed.
18
Weyrich, 235 F.3d at 628 (quoting RESTATEMENT § 652E).
Thus, “before finding that a statement is not actionable, because
it is not reasonably capable of defamatory meaning, [the district
court] must also satisfy itself that the statement does not
arguably place appellant in a ‘highly offensive’ false light.” Id.
Accordingly, we affirm the district court’s dismissal of the
original and amended complaints, except that we reverse and
remand as to claims of defamation, false light invasion of
privacy, and tortious interference with business expectancy
relating to the second passage of Report 145 as applied to Philip
Zepter personally.