Lemelson v. Bloomberg L.P.

United States Court of Appeals
For the First Circuit

No. 17-1620

REV. FR. EMMANUEL LEMELSON; LEMELSON CAPITAL MANAGEMENT, LLC,

Plaintiffs, Appellants,

v.

BLOOMBERG L.P.; MATTHEW ROBINSON, as an individual and as an
agent of Bloomberg L.P.; JESSE WESTBROOK, as an individual and
as an agent of Bloomberg L.P.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Timothy S. Hillman, U.S. District Judge]

Before

Torruella, Lynch, and Kayatta,
Circuit Judges.

Thomas R. Mason and Law Offices of Thomas Mason on brief for
appellants.
Robert A. Bertsche, Prince Lobel Tye LLP, Jeffrey B. Korn,
Jonathan D. Waisnor, and Willkie, Farr & Gallagher LLP, on brief
for appellees.

August 30, 2018
 KAYATTA, Circuit Judge. In both an online article and

a subsequent TV interview, Bloomberg News reported that the

Securities and Exchange Commission had opened an investigation to

determine whether Emmanuel Lemelson, a priest and hedge fund

manager, had intentionally published false material about public

companies in whose stock he held a short position. Lemelson filed

suit against Bloomberg and the article's authors, claiming that

the report renders Bloomberg liable for several common-law torts,

including defamation. The district court disposed of Lemelson's

suit on defendants' motion to dismiss. It concluded that

Lemelson's activities made him at least a limited-purpose public

figure -- if not a full-fledged public figure -- thus requiring

Lemelson to allege facts making it plausible that Bloomberg acted

with actual malice in reporting about Lemelson. After concluding

that Lemelson had failed to allege such facts, the district court

dismissed his suit. Lemelson now appeals. For the following

reasons, we affirm.

I.

Because this suit comes to us on appeal from the district

court's dismissal for failure to state a claim, we draw the facts

from the complaint. See González v. Vélez, 864 F.3d 45, 48 (1st

Cir. 2017). In this posture, we also consider the "implications

from documents attached to or fairly incorporated into the

complaint," as well as "facts susceptible to judicial notice" and

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"concessions in plaintiff's response to the motion to dismiss."

Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55-56

(1st Cir. 2012) (internal quotation marks omitted).

According to his complaint, Emmanuel Lemelson is a

"world-renowned priest [and] religious leader" in the Greek

Orthodox Church. In his career outside of the church, Lemelson

manages a hedge fund. He has become a "financial expert,

philanthropist, humanitarian, and entrepreneur." Lemelson serves

as the Chief Investment Officer of Lemelson Capital, LLC -- a firm

that manages investment funds -- which, in turn, launched and

manages a fund called Amvona. Lemelson also authors a blog that

discusses, among other things, religion and finance. In his

capacity as a commentator, he "has been interviewed by many

international media outlets."

On March 17, 2016, Matthew Robinson, a reporter for

Bloomberg News, called Lemelson for an interview. Robinson related

to Lemelson the outline of a story he was writing: The SEC was

looking into whether Lemelson had bet against publicly traded

companies then published false statements in the hope of driving

down the stock price. Robinson sought Lemelson's comment.

Lemelson denied that he or his firm was the subject of an SEC

investigation, but did report knowing of an SEC investigation into

Ligand Pharmaceuticals, a publicly traded company about which

Lemelson had publicly written. As recited in the complaint,

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Robinson responded to Lemelson's denial by stating, "[W]ell, I'm

going to write that you are being investigated anyway."

Later that day, Robinson followed up with an email. He

laid out in more detail the elements of the story he planned to

write and the specific allegations against Lemelson, and again

asked for comment. The next morning, Robinson left a voicemail to

the same effect and also informed Lemelson that Bloomberg planned

to go to print imminently. Shortly thereafter, Robinson sent

another email, reiterating his request that Lemelson "please get

back to [him] as soon as possible." Beyond the first phone call,

Lemelson does not appear to have responded to any of Robinson's

communications.

On March 18, 2016, Bloomberg published the article.

Titled "Hedge Fund Priest's Trades Probed by Wall Street Cop," it

reported that the SEC was investigating Lemelson for stock

manipulation. According to the article, the SEC was examining

information Lemelson published about a variety of companies,

including Ligand Pharmaceuticals, World Wrestling Entertainment,

and Sketchers. The SEC sought to determine whether he had run

afoul of securities laws by knowingly publishing false information

about companies his firm had shorted. As we have previously

explained, "'[s]hort selling' is a transaction in which an investor

borrows shares of stock, sells them, and later buys an equivalent

amount of shares to return the borrowed shares." Howard v.

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Antilla, 294 F.3d 244, 246 (1st Cir. 2002). Thus, the "potential

for profit in short selling lies in the possibility that the stock

price will decline between the time the short seller sells the

borrowed stock and the time he must purchase replacement shares to

repay the borrowed stock." Id. In one instance, the article

reported, shares of Ligand Pharmaceuticals dropped seven percent

after Lemelson posted on his blog that demand for one of Ligand's

drugs was rapidly declining and that the company faced the imminent

risk of declaring bankruptcy. Lemelson does not dispute that his

firm held a short position in Ligand.

The article did not name a source, but attributed its

information to "people with knowledge of the matter," stating that

"Ryan White, an SEC spokesman, declined to comment." The article

also noted that Lemelson "hasn't been accused of wrongdoing" and

that the investigation was but a "preliminary step."

After publication, Lemelson requested that Bloomberg

retract its story. He sent Jesse Westbrook, Robinson's editor, a

press release denying the existence of an investigation or any

conduct that could be the basis of that investigation. Bloomberg

did not retract the article, but did update its content with a

quotation from Lemelson's press release. In a TV interview on

Bloomberg's news channel that aired later that day (after

Lemelson's request for retraction), Robinson repeated many of the

article's allegations.

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 Lemelson filed a four-count complaint in Massachusetts

state court against Bloomberg, Robinson, and Westbrook, alleging:

defamation (count I); commercial disparagement (count II);

negligence (count III); and intentional interference with

prospective economic advantage (count IV). Defendants removed the

case to federal court on the basis of diversity jurisdiction. In

his complaint, Lemelson averred that the article's primary

contention -- that he was the subject of an SEC investigation --

was false. The SEC, Lemelson asserted, had informed his lawyers

that he and Lemelson Capital had never been the subject of any SEC

investigation. Lemelson claimed that Bloomberg published the

article knowing its falsity, or, at least, with reckless disregard

for its truth.

The district court concluded that Lemelson was required

to plausibly allege actual malice because he was at least a

limited-purpose public figure. Finding that he had failed to do

so, the district court granted defendants' motion to dismiss

counts I through III, and concluded that Lemelson failed to allege

sufficient facts to make out a claim under count IV. Lemelson now

appeals the dismissal of counts I, II, and IV.

II.

We review the decision to grant a Rule 12(b)(6) motion

to dismiss de novo. Schatz, 669 F.3d at 55. In conducting this

inquiry, "we accept as true all well-pleaded facts alleged in the

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complaint and draw all reasonable inferences therefrom in the

pleader's favor." Rodríguez-Reyes v. Molina-Rodríguez, 711 F.3d

49, 52-53 (1st Cir. 2013) (quoting Santiago v. Puerto Rico, 655

F.3d 61, 72 (1st Cir. 2011)). We do not credit, however, legal

labels or conclusions, or statements that merely rehash elements

of the cause of action. Schatz, 699 F.3d at 55. Training our

attention on the non-speculative, non-conclusory facts and

reasonable inferences implied by those facts, we ask whether it is

plausible, as opposed to merely possible, that plaintiff's

complaint narrates a claim for relief. Id.

A.

We begin with Lemelson's defamation claim. To get to

the crux of this appeal, we skip over the state-law elements of

defamation, and focus our attention on the issue of actual malice.

See Schatz, 669 F.3d at 56 (taking a similar approach).

Over fifty years ago, the Supreme Court held that the

First Amendment requires a public official advancing a defamation

claim to show by clear and convincing evidence that the defendant

acted with actual malice: that is, with knowledge of the

statement's falsity or reckless disregard for its truth. See N.Y.

Times v. Sullivan, 376 U.S. 254, 279-80 (1964); see also Harte-

Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657, 659 (1989)

(noting that, to recover, the showing must be made by clear and

convincing proof). In the decades since, the Court has extended

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the requirement of actual malice beyond general public figures, to

an otherwise private figure who "voluntary injects himself or is

drawn into a particular public controversy," thus becoming a

limited-purpose public figure for that particular controversy.

Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974). Here, the

district court found that Lemelson qualified as at least a limited-

purpose public figure, if not a general public figure, and

therefore had to demonstrate actual malice in order to prevail in

this lawsuit. Lemelson does not challenge this finding on appeal,

and instead accepts that he must allege facts plausibly

establishing actual malice in order for his claim to survive. We

proceed accordingly.

Actual malice is a "wholly subjective" standard.

Levesque v. Doocy, 560 F.3d 82, 90 (1st Cir. 2009). Thus, a mere

deviation from reasonably prudent conduct will not suffice. Id.

Similarly, showing a departure from industry standards, alone, is

insufficient to allege actual malice, even if that departure is

"extreme." Connaughton, 491 U.S. at 665. Rather, to satisfy the

actual malice requirement, a plaintiff must point to "sufficient

evidence to permit the conclusion that the defendant in fact

entertained serious doubts as to the truth of his publication,"

St. Amant v. Thompson, 390 U.S. 727, 731 (1st Cir. 1968), or

"actually had a 'high degree of awareness of . . . probable

falsity," Connaughton, 491 U.S. at 688 (quoting Garrison v.

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Louisiana, 379 U.S. 64, 74 (1964)). Because direct evidence of

subjective belief rarely exists, a "court will typically infer

actual malice from objective facts." Bose Corp. v. Consumers Union

of U.S., Inc., 692 F.2d 189, 196 (1st Cir. 1982), aff'd, 466 U.S.

485 (1984); accord Levesque, 560 F.3d at 90. On a Rule 12(b)(6)

motion to dismiss, we do not concern ourselves with questions of

evidentiary sufficiency, see Evergreen Partnering Grp., Inc. v.

Pactiv Corp., 720 F.3d 33, 43 (1st Cir. 2013), but ask only whether

Lemelson "la[id] out enough facts from which malice might

reasonably be inferred," Schatz, 669 F.3d at 58. Said otherwise,

Lemelson's well-pleaded facts must "'nudge[]' his actual malice

claim 'across the line from conceivable to plausible.'" Id.

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

With this law in mind, we begin our analysis with several important

points of context.

First, the complaint alleges no plausible motive for

Bloomberg to have fabricated from whole cloth any story critical

of Lemelson. See Bose Corp., 692 F.2d at 196 (listing "motive" as

one of the facts on which a complaint "should provide evidence" to

allow an inference of actual malice). Nor does the complaint

contend that Bloomberg knowingly relied on a source who had a clear

motive to fabricate the story.

Second, the complaint and unchallenged portions of the

article itself point to undisputed facts that preclude us from

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inferring that the notion of an SEC investigation of Lemelson would

have seemed so implausible as to cast doubt on Bloomberg's belief

that it was true. Lemelson does not deny that he had indeed both

shorted the securities of Ligand and published statements critical

of Ligand, which were followed by a drop in Ligand's stock price.

While none of that information itself evidences any wrongdoing, it

certainly provided ample background against which the reports from

unnamed sources of an investigation of Lemelson hardly seemed

surprising.

Third, the complaint concedes that, before publishing

its story, Bloomberg reached out repeatedly to secure an interview

with Lemelson and to otherwise solicit his comment, and then

published his denial of the claim that he was under investigation.

That conduct tends to undercut any inference of actual malice.

Fourth, while the complaint alleges "on information and

belief" that Bloomberg did not contact the SEC, the article states

that "Ryan White, an SEC spokesman, declined to comment." The

complaint avoids taking any direct issue with this assertion. To

the contrary, Lemelson admitted in the district court that "the

SEC has a policy of not confirming or denying investigations of

particular individuals."

Collectively, these points cut strongly against drawing

any inference that the article was the product of malice. On

appeal, Lemelson's principal rejoinder to the force of these points

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is to assert that Bloomberg actually fabricated the story out of

whole cloth, without any source, much less the unnamed sources

cited in the article. Lemelson, however, never advanced such a

bold and frontal attack on the provenance of the article in his

complaint, perhaps because he had no basis for making such a claim

given the context in which this all played out. Nor did he develop

any such argument before the district court. These omissions

prevent him from relying on such an argument now. See Teamsters,

Chauffeurs, Warehousemen & Helpers Union, Local No. 59 v. Superline

Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992) ("If any principle is

settled in this circuit, it is that, absent the most extraordinary

circumstances, legal theories not raised squarely in the lower

court cannot be broached for the first time on appeal.").

Lemelson also contends that Bloomberg failed to fact-

check its story or test the accuracy of its information. Lemelson

did preserve this argument. Specifically, he alleged in his

complaint that Bloomberg published its story "without contacting

anyone at the SEC to verify whether or not Plaintiff was being

investigated." As we have already explained, though, the complaint

does not challenge the article's statement that the reporter did

try to get a comment from the SEC spokesman, whom it named.

Lemelson also concedes that it was not possible to get anyone at

the SEC to verify or refute the existence of an investigation.

And Lemelson admits that Bloomberg repeatedly reached out to him

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for his side of the story, and included his denial in the story

itself.

Moreover, "failure to investigate before publishing,

even when a reasonably prudent person would have done so, is not

sufficient to establish reckless disregard." Connaughton, 491

U.S. at 688. Not even an "extreme departure from professional

standards" can do the trick. Howard, 294 F.3d at 252 (quoting

Connaughton, 419 U.S. at 665). A fortiori, an investigation that

included an attempt to obtain SEC comment and repeated inquiries

of Lemelson trying to confirm or rebut facially plausible reports

from other sources raised no inference of reckless disregard.

That being said, "the purposeful avoidance of the truth

is in a different category." Connaughton, 491 U.S. at 692. Thus,

actual malice can be shown where the publisher is in possession of

information that seriously undermines the truth of its story, or

deliberately decides not to acquire information that would confirm

the probable falsity of its report. See id. at 692-93; Howard,

294 F.3d at 254-55. But Lemelson points to no such facts.

Lemelson does fault Bloomberg for not including in its

article two statements that Lemelson made to Robinson in their

phone call: that Lemelson knew of an SEC investigation into Ligand,

and that he had filed a whistleblower report concerning Ligand

with the SEC three months earlier. Lemelson contends that the

inclusion of these facts would have made for a more "balanced" and

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"fair account." This argument misses the mark. Only the omission

of information that could "confirm the probable falsity" of the

allegedly defamatory statements can give rise to an inference of

actual malice. Connaughton, 491 U.S. at 692. An investigation

into Ligand and Lemelson's participation in that investigation

bears too little on the inference Lemelson would have us draw --

that it was unlikely that the SEC was investigating Lemelson -- to

support a claim that failing to mention these facts implied malice.

To the contrary, Lemelson's report that the SEC was looking into

Ligand actually made it more plausible that he might be of interest

to the SEC as well. Nor does Lemelson point to any other fact

from which we could conclude that there were "obvious reason[s] to

doubt [the] veracity" of the source's information. Levesque, 560

F.3d at 90. Thus, absent more, Lemelson has not laid out

sufficient facts to push his allegation of actual malice "across

the line from conceivable to plausible." Schatz, 669 F.3d at 58

(quoting Twombly, 550 U.S. at 570). Therefore, his defamation

claim cannot survive.

B.

Lemelson's remaining two counts advanced in this appeal

fare no better. Lemelson concedes -- and we thus assume -- that

his commercial disparagement claim rises and falls with our

conclusion as to actual malice regarding defamation. It thus

falls. And, in his brief on appeal, Lemelson does little more

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than restate the elements of his count for "intentional

interference with prospective economic advantage." Such cursory

treatment does not preserve the issue for our review, and we deem

it waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.

1990) ("[I]ssues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are

deemed waived.").

III.

For the foregoing reasons, we affirm the dismissal of

Lemelson's complaint.

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