United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 16, 2009 Decided January 29, 2010
No. 09-7044
MILAN JANKOVIC, ALSO KNOWN AS PHILIP ZEPTER,
APPELLANT
v.
INTERNATIONAL CRISIS GROUP, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:04-cv-01198-RBW)
William T. O’Brien argued the cause for appellant. With
him on the briefs were Lisa M. Norrett, John W. Lomas Jr.,
and Malcolm I. Lewin.
Amy L. Neuhardt argued the cause for appellee
International Crisis Group. With her on the brief was
Jonathan L. Greenblatt. Neil H. Koslowe entered an
appearance.
Before: GINSBURG and GRIFFITH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
2
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: Milan Jankovic, also
known as Philip Zepter, sued International Crisis Group and
additional unnamed defendants Does 1 through 10 (“ICG,” for
the institution or for all defendants, as appropriate) for
defamation, false light and intentional interference with
business expectancy. The district court issued an order
granting ICG’s motion to dismiss (the “Order”), J.A. 1221-28
and Jankovic appeals. We reverse in part, affirm in part, and
remand for additional proceedings.
* * *
Jankovic is the founder of Zepter Group, which provides
“a wide range of products and services, including banking,
insurance, telecommunications, and retail sales of consumer
products.” J.A. 20. ICG is a non-profit organization that
describes itself as "working through field-based analysis and
high-level advocacy to prevent and resolve deadly conflict.”
International Crisis Group, Serbian Reform Stalls Again, ICG
Balkans Report No. 145 at 30 (July 17, 2003) (“Report 145”)
J.A. 82-124. ICG’s “reports and briefing papers are
distributed widely by email and printed copy to officials in
foreign ministries and international organisations and made
generally available at the same time via the organisation’s
Internet site.” Id. The language at issue in this case appears in
ICG’s Report 145, which addresses the deceleration of
Serbian reforms—reforms initially spurred by the
assassination of Premier Zoran Djindjic. We excerpt it below,
numbering the sentences to assist discussion:
3
[1] 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. [2] Some of the companies were
originally formed as fronts by State Security or Army
Counterintelligence (KOS), while others operated at the
direct pleasure of the ruling couple. [3] Under
Milosevic, many of these companies profited from special
informal monopolies, as well as the use of privileged
exchange rates. [4] In return, many of them financed the
regime and its parallel structures.
[5] Some of the individuals and companies are well
known to average Serbs: Delta Holding (Milorad
Miskovic), Karic (Bogoljub Karic), Pink (Zeljko
Mitrovic), Zepter (Milan Jankovic, aka Filip Zepter),
Kapital Banka (Djordje Nicovic), Toza Markovic (Dmitar
Segrt), Progres (Mirko Marjanovic), Simpo (Dragan
Tomic), Komercijalna Banka (Ljubomir Mihajlovic),
Novokabel (Djordje Siradovic), Stanko Subotic, Dibek
(Milan Beko), ABC (Radisav Rodic), Hemofarm
(Miodrag Babic), AIK Banka Nis (Ljubisa Jovanovic)
and Dijamant (Savo Knezevic) are but some of the most
prominent. [6] 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.80
[7] In the popular mind, they and their companies
were associated with the Milosevic regime and benefited
4
from it directly. [8] The DOS campaign platform in
September 2000 promised that crony companies and their
owners would be forced to answer for past misdeeds. [9]
Few of the Milosevic crony companies have been
subjected to legal action, however. [10] 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.81 [11] 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.
80
http://europa.eu.int/index.eu.htm#;
http://www.treas.gov/offices/eotffc/ofac/sdn/index.html
81
ICG interview with Finance Minister Djelic.
Report 145 at 17.
Plaintiff initially alleged that the above passage (as well
as two others in Report 145) contained defamatory statements,
placed him in a false light, and intentionally interfered with
his business expectancies. Jankovic v. Int’l Crisis Group, 429
F. Supp. 2d 165, 168-69 (D.D.C. 2006). The district court
dismissed these claims, characterizing the passages as “not
capable of defamatory meaning” and ruling that, as a result,
they could not support either of the other claims. Id. at 179.
In Jankovic v. Int’l Crisis Group, 494 F.3d 1080 (D.C. Cir.
2007), we reversed the district court’s dismissal in part,
finding that the passage excerpted above was susceptible of a
defamatory reading. Id. at 1091.
5
Specifically, following the sequence laid out in Moldea v.
New York Times Co. 15 F.3d 1137, 1142 (D.C. Cir. 1994)
(Moldea I), we first found that, despite “numerous qualifiers,”
a reasonable reader could construe the passage as asserting
“that Philip Zepter, personally, was a ‘crony’ of Milosevic
who supported the regime in exchange for favorable
treatment” and “that Philip Zepter was actively in alliance
with Milosevic and his regime.” Jankovic, 494 F.3d at 1091.
The understanding that Report 145 accused Jankovic of
“supporting” the Milosevic regime clearly derives from
sentences 5 and 6 of the passage. Sentence 5 lists “Zepter
(Milan Jankovic, aka Filip Zepter)” as belonging to the new
Serbian oligarchy described in the first sentence. Sentence 6
imputes support of Milosevic (“and the parallel structures that
characterised his regime”) to those named in sentence 5. In
addition, sentences 1 through 4 implied the quid pro quo
feature that we identified (“in exchange for favorable
treatment”).
We note that sentences 2, 3, 4 and 6 use the pronouns
“some” or “many,” leaving open the possibility that readers of
Report 145 might not suppose that the companies and
individuals named in sentence 5 were generally guilty of the
conduct charged in sentences 2, 3, 4 and 6. But the prior
panel, though recognizing that the passage contained a
number of “qualifiers,” Jankovic, 494 F.3d at 1091, could not
have reached its interpretation unless it supposed that
ordinary, reasonable readers could read the report as implying
that those named in sentence 5 were guilty of supporting
Milosevic and of receiving favorable treatment in exchange.
Even if we disagreed with that understanding, which we do
not, we are bound to it under the doctrine of law of the case.
LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996) (en
6
banc) (“[T]he same issue presented a second time in the same
case in the same court should lead to the same result.”)
(emphasis in original).
As to the defamatory quality of the assertions, we
observed that “[m]erely associating somebody with a foreign
government would not ordinarily be defamatory”; but, citing a
case involving the apartheid regime of South Africa, we found
that in this case the relationship asserted could be “sufficiently
‘odious, infamous, or ridiculous’” to so qualify. Jankovic,
494 F.3d at 1091 (citing Southern Air Transport, Inc. v. ABC,
Inc., 877 F.2d 1010 (D.C. Cir.1989)). We remanded to the
district court with instructions that it consider “the
applicability and merits of . . . Opinion and Fair Comment
Protection, the Fair Report Privilege, or the Neutral-Reportage
Doctrine.” Id.
On remand, ICG filed a motion seeking dismissal on
grounds of opinion, fair comment, and fair report privilege.
Jankovic opposed and also sought discovery on facts relating
to the asserted defenses. The district court denied Jankovic’s
discovery motion and concluded that the passage was shielded
by the fair report and fair comment privileges and protected as
opinion. Holding that the passage was non-actionable, the
district court dismissed all of Jankovic’s claims. Order at 2.
The court also held that the claim for intentional interference
with business expectancy was inadequately pled. Id. at 6-7.
Jankovic now challenges all these rulings. We review the
district court’s dismissal de novo. Weyrich v. New Republic,
Inc., 235 F.3d 617, 623-24 (D.C. Cir. 2001). While we affirm
dismissal of the claim for intentional interference with
business expectancy, we hold that none of the privileges or
protections raised by ICG applies to the assertions that
7
Jankovic supported the Milosevic regime and that he received
advantages in exchange. Accordingly, we remand the case for
further proceedings on the claims for defamation and false
light.
* * *
A. The privileges and defenses
Fair report. Under applicable District of Columbia law,
a defendant must “clear[] two major hurdles” to qualify for
the fair report privilege. Phillips v. Evening Star Newspaper
Co., 424 A.2d 78, 89 (D.C. App. 1980). It must show, first,
that its publication was a “fair and accurate report” of a
qualified government source, and, second, that the publication
properly attributed the statement to the official source. Id.
See also Dameron v. Washington Magazine, Inc., 779 F.2d
736 (D.C. Cir. 1985); Prins v. Int’l Telephone & Telegraph
Corp., 757 F. Supp. 87, 93 (D.D.C. 1991).
There are serious problems on the score of proper
“attribution.” The pertinent government source is referenced
in footnote 80 of Report 145, which contains the Uniform
Resource Locator (“URL”) for an Office of Foreign Assets
Control (OFAC) website: http://www.treas.gov/offices/eotffc/
ofac/sdn/index.html (last visited Dec. 22, 2009). The cited
URL is currently non-functional: the Treasury’s server returns
an error message saying that it is not aware of the page.
ICG asserts that those who now access that URL will be
“automatically transfer[red] to the now-current OFAC
webpage regarding the Specially Designated Nationals
(‘SDN’) List at http://www.treas.gov/offices/enforcement/
ofac/sdn/index.html” (last visited Dec. 22, 2009). ICG Br. at
8
32 n.18. Not only is that not correct, but this second OFAC
URL is also non-functioning.
Whatever the efficacy of the URLs as such, ICG claims
that footnote 80 adequately attributes the defamatory
statements to the OFAC’s frozen assets list for 1998, and to
Executive Order 13088: Blocking Property of the
Governments of the Federal Republic of Yugoslavia (Serbia
and Montenegro), the Republic of Serbia, and the Republic of
Montenegro, and Prohibiting New Investment in the Republic
of Serbia in Response to the Situation in Kosovo (June 9,
1998), 63 Fed. Reg 32109 (the “Executive Order”). ICG Br.
at 33; see also id. at 42. We will assume in ICG’s favor that
Report 145 adequately leads the reader to either or both of
these sources.
As we shall see, however, Report 145 does not give a
“fair and accurate” report of either of them. The apparent
listing of Zepter Banka appears on page 40 of a 42-page
single-spaced list that ICG offered to the district court as “a
true and correct copy of the screen shot of SDN Changes
1998.” J.A. 454, 576. At page 9 of this “screen shot” is a
heading indicating that the names below (which include more
than 100 banks) were added to the frozen assets list on June
18, 1998:
06/18/98: The following names have been added to the
list of Specially Designated Nationals and Blocked
Persons in connection with an Executive Order issued by
President Clinton blocking property of the Governments
of the Federal Republic of Yugoslavia (Serbia and
Montenegro), the Republic of Serbia, and the Republic of
Montenegro, and Prohibiting new investment in the
Republic of Serbia in response to the situation in Kosovo.
9
J.A. 545.
This listing, standing alone, tells only that it occurred
pursuant to the Executive Order and that the entities either
were property of the Yugoslav, Serbian or Montenegrin
governments or somehow had a role in enabling investment in
the Republic of Serbia. Not a word suggests that Zepter
Banka, let alone Phillip Zepter, supported the Milosevic
regime or received advantages in exchange.
In the Executive Order itself, President Clinton ordered
(with immaterial exceptions):
[A]ll property and interests in property of the
Governments of the Federal Republic of Yugoslavia
(Serbia and Montenegro), the Republic of Serbia, and the
Republic of Montenegro that are in the United States, that
hereafter come within the United States, or that are or
hereafter come within the possession or control of United
States persons . . . are hereby blocked.
63 Fed. Reg. at 32109, § 1(a). The order defines the
“government of the Federal Republic of Yugoslavia (Serbia
and Montenegro)” as
the government of the Federal Republic of Yugoslavia
(Serbia and Montenegro), its agencies, instrumentalities,
and controlled entities, including all financial institutions
and state-owned and socially owned entities organized or
located in the Federal Republic of Yugoslavia (Serbia and
Montenegro) as of June 9, 1998.
Id. § 5(e) (emphasis added). It similarly defines the
governments of Serbia and Montenegro to include all
financial institutions organized or located in those countries.
10
Id. §§ 5(f), 5(g). These definitions are replicated in
regulations of the Office of Foreign Assets Control of the
Treasury Department. 31 C.F.R. §§ 586.306-308.
Later Treasury regulations explain:
These governments are defined in §§ 586.306 and
586.308 of the Regulations, respectively, and include “all
financial institutions and state-owned and socially-owned
entities organized or located” in the territories of the FRY
(S&M) state and the Republic of Serbia, respectively, as
well as “any persons acting or purporting to act for or on
behalf of'” those governments.
64 Fed. Reg. 60660/3 (Nov. 8, 1999).
These definitions make it clear that the regulations treat
all financial institutions as agencies, instrumentalities, or
controlled entities of the governments of the various territories
where they are organized or located. As a financial
institution, Zepter Banka would appear on the frozen assets
list whatever its relationship was to the Milosevic regime, so
long as it met either the locational or the organizational
criterion. Thus Report 145’s assertions that Zepter Banka
gave “support” to Milosevic, and that its U.S. assets were
frozen because of that support, are not fair or accurate reports
of any government document ICG has identified.
Accordingly, the fair report privilege is of no use to ICG.
Opinion, non-verifiable propositions. Although the
parties direct arguments to whether ICG’s assertions are
“opinion,” the Supreme Court’s decision in Milkovich v.
Lorain Journal Co., 497 U.S. 1, 20 (1990), made clear that the
First Amendment gives no protection to an assertion
“sufficiently factual to be susceptible of being proved true or
11
false,” id. at 21, even if the assertion is expressed by
implication in “a statement of ‘opinion,’” id. at 20. See also
Moldea v. New York Times Co., 22 F.3d 310, 313 (D.C. Cir.
1994). (ICG does not suggest that liability under the law of
the District of Columbia might (in this respect) be narrower
than what the First Amendment allows.)
In finding non-verifiability, the district court focused on
the word “crony,” Order at 4-5, which we indeed used in our
summary of Report 145’s relevant statements. But regardless
of whether that epithet is verifiable standing alone, the
question here is the verifiability of ICG’s assertions that the
plaintiff “gave” “support” to Milosevic (sentence 6), and that
he gave support “in exchange for favorable treatment” (as the
prior panel summarized the reasonably understood meaning of
the relevant sentences, see 494 F.3d at 1091). To resolve the
issue of “verifiability,” we need not probe arcane matters of
epistemology; both propositions are verifiable in the practical
sense that our legal system is ready to make decisions on the
basis of how such issues are resolved—decisions profoundly
impacting people’s lives.
As to “support,” for example, the Supreme Court has
upheld the authority of the executive branch to detain an
individual, including a citizen, on a showing that he was
(among other things) “‘part of or supporting forces hostile to
the United States or coalition partners.’” Hamdi v. Rumsfeld,
542 U.S. 507, 516 (2004) (emphasis added). Similarly,
whether support is offered in exchange for favorable treatment
is analogous to the factual inquiry underlying the offense of
bribery. See 18 U.S.C. § 201(b) (“Whoever . . . directly or
indirectly, corruptly gives, offers or promises anything of
value to any public official . . . with intent . . . to influence any
official act . . . shall be fined . . . or imprisoned for not more
12
than fifteen years, or both.”). If such points are verifiable
enough to be the bases for prolonged detention, they are
surely (at least in the potentially defamatory constructions
understood by the prior panel) verifiable enough for
defamation liability.
As part of its “opinion” argument, ICG says that the
“factual basis for the connection between Zepter and the
Milosevic regime that this Court held could be gleaned from
[Report 145] is fully disclosed to the reader,” and that
therefore ICG should be immune under the doctrine that “a
statement of opinion that is based upon true facts that are
revealed to readers . . . [is] generally . . . not actionable so
long as the opinion does not otherwise imply unstated
defamatory facts.” ICG Br. at 29 (quoting Moldea I, 15 F.3d
at 1144-45). But as we explained above, the proposition that
we said a reasonable reader could derive from Report 145—
that Zepter supported the Milosevic regime or “the parallel
structures that characterised his regime”—is based on ICG’s
assertions in sentences 5 and 6 that Zepter or Zepter Banka
appeared on the frozen assets list because of support that was
provided to Milosevic. Though Zepter Banka did appear on
the frozen assets list, there is no evidence in the record that its
appearance was based upon support for Milosevic, as opposed
its simply being a financial institution in the region (and
therefore automatically listed). Whether or not the
defamatory reading of the passage constitutes an opinion, this
aspect of Moldea I protects only opinions based on true facts,
accurately disclosed. As ICG falsely stated the basis for the
frozen assets lists, the doctrine is of no use to it. See
Milkovich, 497 U.S. at 18-19 (“Even if the speaker states the
facts upon which he bases his opinion, if those facts are either
incorrect or incomplete, or if his assessment of them is
13
erroneous, the statement may still imply a false assertion of
fact.”).
ICG makes an additional somewhat muddled effort to
pull the sting of Report 145. ICG Br. at 29-35. This portion
of its brief appears to rely on the notion that authors of the
report saved it from any defamatory character by sprinkling
the pronouns “many” and “some” throughout its allegations.
As we said earlier, that reading is inconsistent with the
interpretation reached by the prior panel and is thus of no help
to ICG.
Fair comment. ICG argues “fair comment” also as a free-
standing doctrine under District of Columbia law (separately
from its role in ICG’s First Amendment non-verifiability
defense). ICG Br. at 40-41. But a conclusion based on a
misstatement of fact is not protected by the privilege. See
Washington Times Co. v. Bonner, 86 F.2d 836, 841 n.4 (D.C.
Cir. 1936) (“[T]he facts asserted as predicate of the fair
comment must be true . . . .”). As we explained above, ICG
here relies on the appearance of Zepter Banka on the frozen
assets lists. Those lists, however, do not buttress accusations
that Zepter Banka or Jankovic supported Milosevic or did so
“in exchange for favorable treatment.” Accordingly, the key
passages of Report 145 are not protected as fair comment.
In short, the excerpted passage is not protected as fair
comment, fair report or opinion, whether for purposes of
defamation, false light or intentional interference with
business expectancy.
14
B. Intentional Interference with Business Expectancy
We have said that a plaintiff must plead, as necessary
elements for a claim for intentional interference with business
expectancy under District of Columbia law: “(1) the existence
of a valid business relationship or expectancy, (2) knowledge
of the relationship or expectancy on the part of the interferer,
(3) intentional interference inducing or causing a breach or
termination of the relationship or expectancy, and (4) resultant
damage.” Bennett Enters. v. Domino’s Pizza, Inc., 45 F.3d
493, 499 (D.C. Cir.1995).
For the first element Jankovic appears to rely entirely on
allegations of harm to his business generally. His complaint
alleges, for example: “Plaintiffs’ businesses have suffered a
loss of current growth and business opportunities, a loss of
future growth and business opportunities, and a loss of access
to markets that otherwise would have been available,
amounting to general damages in an amount to be proven at
trial.” Complaint ¶ 104.
But the first element of the tort, “a valid business
relationship or expectancy,” appears to require rather specific
business opportunities (to be sure, however, not ones
necessarily manifested in any contract). The cases invoked by
the parties all revolve around relatively specific anticipated
transactions: a prospective book deal, Browning v. Clinton,
292 F.3d 235 (D.C. Cir. 2002); “three potential sources of
prospective employment,” Kimmel v. Gallaudet Univ., 639 F.
Supp. 2d 34, 45 (D.D.C. 2009); development of a specific
property in the District of Columbia, Carr v. Brown, 395 A.2d
79, 82-84 (D.C. 1978); opportunity to represent a trustee in a
specific litigation, Dem. State Comm. of D.C. v. Bebchick, 706
A.2d 569 (D.C. 1998). See also Laser Labs, Inc. v. ETL
15
Testing Labs., Inc., 29 F. Supp. 2d 21 (D. Mass. 1998)
(dismissing a claim for intentional interference with business
expectancy under Massachusetts law where plaintiff failed to
allege interference with specific expectancies). The
opportunities alleged by Jankovic, by contrast, appear to be
simply the generic opportunities of any successful enterprise,
a type of injury that can be protected by an award of damages
in a successful defamation suit. See Robert D. Sack, Sack on
Defamation, Libel, Slander and Related Problems § 10.5.1 (3d
ed. 2009) (citing cases). Accordingly, we affirm the district
court’s dismissal of the business expectancy claim.
Conclusion
While we affirm the district court’s dismissal of
Jankovic’s claim for intentional interference with a business
expectancy, we reverse its dismissal of the remaining counts,
and remand for proceedings consistent with this opinion.
So ordered.