United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 21-7099 September Term, 2021
FILED ON: MAY 10, 2022
BYD COMPANY LTD,
APPELLANT
v.
ALLIANCE FOR AMERICAN MANUFACTURING, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cv-03458)
Before: HENDERSON, PILLARD, and KATSAS, Circuit Judges.
JUDGMENT
This appeal was considered on the record from the United States District Court for the
District of Columbia and on the briefs of the parties. See Fed. R. App. P. 34(a)(2); D.C. Cir. R.
34(j). The court has afforded the issues full consideration and has determined that they do not
warrant a published opinion. See D.C. Cir. R. 36(d). For the following reasons, it is
ORDERED that the judgment of the district court be AFFIRMED.
BYD Company Ltd., a Chinese corporation, brings defamation claims against the Alliance
for American Manufacturing and three of its employees. The claims before us arise from two short
articles that the Alliance published on its website. The articles state that BYD benefits from forced
labor and is controlled by the Chinese government. The district court dismissed the complaint for
failure to plausibly allege that the Alliance published the articles with actual malice. BYD Co. v.
Alliance for Am. Mfg., 554 F. Supp. 3d 1 (D.D.C. 2021). We affirm.
To establish defamation under D.C. law, a plaintiff must show, among other things, that
the defendant made a false and defamatory statement and acted with the requisite level of fault.
Beeton v. District of Columbia, 779 A.2d 918, 923 (D.C. 2001). For statements about a public
figure, the fault standard is actual malice, which means the defendant made the statement “with
knowledge that it was false or with reckless disregard of whether it was false or not.” Kahl v.
Bureau of Nat’l Affairs, Inc., 856 F.3d 106, 116 (D.C. Cir. 2017) (quoting New York Times v.
Sullivan, 376 U.S. 254, 280 (1964)). It is not enough that the defendant “should have known” that
its statement was false; the defendant must have “in fact harbored subjective doubt” about the truth
of its claim. Jankovic v. Int’l Crisis Grp., 822 F.3d 576, 589 (D.C. Cir. 2016). BYD concedes
that it is a public figure for the purposes of this case. Thus, to survive a motion to dismiss, BYD
must allege facts that support a plausible inference of actual malice. See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). BYD’s complaint falls far short of that standard.
The first disputed article is titled “Some of the World’s Biggest Brands Depend on Forced
Labor in China.” A. 442. It describes a think-tank report that accuses the Chinese government of
sending members of its Uyghur population into forced labor. The article further states that “several
known bad actors are also profiting from this forced labor, including … Build Your Dreams
(BYD).” A. 443. BYD alleges that the report does not support this claim and that the Alliance
must have known as much. But the report does support the claim. The report lists BYD as among
the companies “directly or indirectly benefiting from the use of” forced labor. A. 412. And it
states that a subsidiary of BYD’s direct supplier uses over 100 forced laborers to make its products.
A. 419. BYD further alleges that the Alliance is biased against foreign companies, but bias alone
does not support an inference of actual malice. Tavoulareas v. Piro, 817 F.2d 762, 795 (D.C. Cir.
1987) (en banc). Tavoulareas left open the possibility that ill will could support a finding of actual
malice “when combined with other, more substantial evidence of a defendant’s bad faith.” Id. But
BYD’s complaint makes no allegations of that sort.
The second article is titled “California has a $1 Billion Contract for PPE with BYD, a
Company Controlled by the Chinese State.” A. 446. BYD contends that its status as a privately
owned corporation is well known, which it says supports a plausible inference that the Alliance
remained willfully blind. But the “failure to investigate will not alone support a finding of actual
malice.” McFarlane v. Sheridan Square Press, Inc., 91 F.3d 1501, 1510 (D.C. Cir. 1996) (cleaned
up). To raise an inference of actual malice based on willful blindness, BYD needed to allege
something more, such as facts showing that the Alliance had “reason to doubt the veracity of its
source.” Id. BYD’s sparse complaint makes no such allegations. In any event, a privately owned
company may be controlled by a government, so knowledge that BYD was privately owned would
suggest little if anything about a claim that the Chinese government effectively controlled it.
For these reasons, we affirm the district court’s judgment. Pursuant to D.C. Circuit Rule
34, this disposition will not be published. The Clerk is directed to withhold issuance of the
mandate until seven days after resolution of any timely petition for rehearing or petition for
rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. R. 41(a)(1).
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk
2