United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 1, 1998 Decided September 3, 1999
No. 97-7178
Novecon Ltd., Novecon Management Company,
and Richard W. Rahn,
Appellants
v.
Bulgarian-American Enterprise Fund, Frank L. Bauer,
and Nancy L. Schiller,
Appellees/Cross-Appellant
Consolidated with
97-7182
Appeals from the United States District Court
for the District of Columbia
(No. 95cv01178)
Douglas B. McFadden argued the cause for appellants.
With him on the briefs was John M. Shoreman.
Anson M. Keller argued the cause for appellees/cross-
appellant. With him on the briefs was Gary H. Baise.
Before: Wald, Silberman and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge: The plaintiffs brought this diver-
sity action charging breach of contract and defamation in
connection with a failed real estate venture in Sofia, Bulgaria.
The district court granted summary judgment in favor of
defendants on both the contract and defamation claims. For
the reasons stated below, we affirm the judgment of the
district court.
I
Plaintiffs Novecon, Ltd. and Novecon Management Compa-
ny ("Novecon") are private firms engaged in developing busi-
ness projects in Bulgaria, primarily through the use of joint
ventures. Plaintiff Richard Rahn is president of both compa-
nies; Ronald Utt is their managing director. Defendant
Bulgarian-American Enterprise Fund (BAEF or "the Fund")
is a not-for-profit corporation established pursuant to the
Support for East European Democracy Act, 22 U.S.C.
ss 5402, 5421. It promotes private sector development and
entrepreneurship in Bulgaria through, among other things,
grants, loans, and equity investments. Defendant Frank
Bauer is the Fund's president and defendant Nancy Schiller
is the managing director of its Chicago office.
A
In 1991, Novecon formed a joint venture with a Bulgarian
company to develop a residential and commercial building
complex in Sofia, on land owned by the Batsov family.1 In
__________
1 Novecon formed the joint venture, known as Southern Park
Development, with Mirpex Co., a Bulgarian limited liability compa-
ny. Southern Park Development has assigned its rights in this
November 1992, it began negotiating with the Batsovs to
transfer title to the land in exchange for a percentage of the
project's finished units. Novecon also contacted BAEF and
proposed that the Fund provide a construction loan to finance
the development of the project. In March 1993, BAEF sent
Novecon a letter indicating that the Fund's board of directors
had "authorized continued conversations surrounding several
real estate projects," including Novecon's. Joint Appendix
("J.A.") 144.
Between May 20 and June 3, 1993, BAEF and Novecon
exchanged a series of four written communications concerning
details of the project. The correspondence described the
extent of Novecon's responsibilities in connection with the
project, set forth a series of project milestones, and described
the payments that Novecon would receive upon the comple-
tion of each milestone. The correspondence contemplated
that the Batsov family would have a 26 percent stake in the
building complex. Novecon contends that these four docu-
ments created a contract which bound BAEF to provide
financing for the project.
The first letter, from Nancy Schiller of BAEF to Ronald
Utt of Novecon, was written on May 20, 1993. J.A. 145. It
stated that the Fund was "prepared to move forward on the
terms outlined in this letter." The letter then described a
"narrower oversight role" for Novecon than previously antici-
pated, listed a series of responsibilities that BAEF contem-
plated for Novecon, and noted that "this list is not exhaustive
[but] should provide an overview of the role that [Novecon]
will have." Schiller stated that "[c]ontingent on the signing
of a definitive agreement," the Fund was willing to compen-
sate Novecon with the sum of $200,000, "with payment based
on timing and project landmarks." The first installment, of
$25,000, would be made "[u]pon completion of: a) Contract
signing, b) Delivery of unencumbered land title for Phase I
and II, c) Transfer of the land title, [and] d) Securing and
delivery of the zoning amendment." Schiller further stated
__________
litigation to Novecon, Utt Aff. p 76 (Joint Appendix ("J.A.") 76), and
we refer to the joint venture as "Novecon" for ease of reference.
that she and Mr. Batsov had agreed that the family would
receive 26 percent of the building's apartments. She noted
that "this document is fairly comprehensive, but undoubtedly
there will be some need to clarify certain points now or as we
proceed." Finally, Schiller said that the offer made in the
letter would expire on June 4, 1993. Id.
On June 1, 1993, Utt sent Schiller a telefax reflecting their
telephone conversation of the previous Friday. J.A. 148-49.
The fax noted that Schiller had asked Novecon to revise the
milestones "to advance the project and conform to Bulgarian
law." Novecon's fax contained the revised milestones, as well
as a series of revised fees, which Utt said he had "redone ...
to better reflect the degree of difficulty in accomplishing the
required tasks." He closed by stating that he "looked for-
ward to [BAEF's] response." Id. at 149.
On June 3, 1993, Schiller sent Utt a revised fee structure
which, she said, would be included "in our request to the
Fund's Board for final approval" of the project. J.A. 150.
Her letter stated, however, that "[o]ne important new issue
has come up." Although BAEF had previously been told that
Mr. Batsov represented all the heirs to the property, Ms.
Lilyana Batsova and two relatives had just notified BAEF
that they had an ownership interest and that Mr. Batsov did
not represent them. "[I]f this is the case," Schiller said, "I
am sure you realize that the BAEF will not pursue this
investment." In light of these developments, Schiller said
that BAEF "will consent to extending our negotiations until
June 15, 1993 by which time we will expect certified documen-
tation of the sign off of all heirs." If evidence is not received
by that date, she said, "BAEF will rescind its offer to
negotiate and terminate its discussions with [Novecon]." Id.
The last of the four communications was a two-paragraph
telefax sent by Utt to Schiller on June 3, 1993. J.A. 152.
"On behalf of [Novecon]," he wrote, "I accept the terms of the
Fund's 20 May 1993 offer and the revised fee schedule. I
also understand that your offer is contingent upon a resolu-
tion of any and all outstanding uncertainties regarding owner-
ship of [the building] sites, and accept the responsibility to
resolve the uncertainties to the Fund's satisfaction by the 15
June 1993 deadline." Novecon contends that by accepting
the terms of the Fund's May 20th letter and June 3rd revised
fee schedule, this telefax "creat[ed] a binding contract." Am.
Compl. p 17.
On June 14, 1993, Schiller telephoned Utt and requested
that he renegotiate the arrangement with the Batsov family
to reduce their share in the project from 26 percent to 12
percent. To give Novecon time to negotiate, BAEF extended
its deadline to June 28. On that date, however, Novecon
advised BAEF that the Batsovs had refused to reduce their
share. Novecon sought BAEF's "guidance as to how ... to
proceed," and offered to "extend the period of time during
which we will not solicit other investors while you attempt to
work this out." J.A. 157-59.
Finally, on November 2, 1993, BAEF wrote Novecon that
"since our agreement to negotiate the project expired on June
28, 1993, we have decided to terminate negotiations." J.A.
160. The letter noted that the local court in Sofia had
delayed judgment on Lilyana Batsova's property claim, that
BAEF had not received a contract signed by the Batsov
family agreeing to turn over the property, and that numerous
zoning issues regarding the land remained unresolved. "Ba-
sically," BAEF wrote, "the project has proven unfeasible."
Id.
In June 1995, Novecon (and Rahn) filed suit in the United
States District Court for the District of Columbia, asserting
jurisdiction based on the diversity of the parties' citizenship.
The complaint alleged three contract-related claims: breach
of contract, promissory estoppel, and quantum meruit. It
contended that by accepting the terms of the Fund's May
20th letter and June 3rd revised fee schedule, Novecon's June
3rd telefax created a binding contract, and that the Fund's
insistence on renegotiating the Batsov family's share breach-
ed the contract and caused the project to collapse.
B
The second phase of the case, culminating in the filing of an
amended complaint for defamation, began soon after Novecon
filed its original contract action. In October of 1995, BAEF
received a two-page document which, it was told, Richard
Rahn of Novecon had given to the American Ambassador to
Bulgaria. BAEF construed the document as a draft for
publication. Bauer Aff. p 77 (J.A. 464). The document
generally attacked BAEF, and contended that "[a]llegations
of conflict of interest and theft of project ideas by individuals
close to the senior staff have been made." J.A. 525-26. It
then proffered the "example of ... the Novecon company."
According to the document, "[a]fter signing the contract with
Novecon," BAEF "proceeded to change the project so that
Novecon with its partners could no longer obtain the neces-
sary agreements and approvals in Bulgaria ... [and] then
refused to compensate Novecon for losing the project."
Moreover, it said, "Dr. Rahn has been told that the BAEF
strategy is to bleed Novecon with legal bills because the
BAEF's legal costs are paid by the taxpayers." The docu-
ment also noted that "Rahn has written members of Congress
requesting hearings and an investigation" of the Fund. Id. at
526.
In November of 1995, Rahn did send letters to members of
Congress, on Novecon stationery. J.A. 529-30. In those
letters, he wrote that "[t]here is considerable evidence that
[BAEF] has abused its fiduciary responsibility with taxpayer
money ... ; does not have competent management; has
conducted its activities in such a way as to give the appear-
ance, if not the fact, of a conflict of interest ... ; has acted in
a manner damaging to legitimate U.S. businesses; and has
damaged U.S. Bulgarian relations." Rahn offered the Nove-
con case as an example, stating, in words paralleling the
October draft discussed above, that "[a]fter signing the con-
tract with Novecon ... the BAEF then proceeded to change
the project so dramatically from the approved plans that the
necessary agreements and approvals in Bulgaria could no
longer be obtained." BAEF then "refused to do the appro-
priate and honorable thing--compensate Novecon" for its
losses. The letter further contended that BAEF's "strategy
is to bleed Novecon with legal bills because the BAEF's legal
costs are paid by the taxpayers." And it specifically charged
that "just last week the BAEF brought four lawyers ... to a
hearing in Washington in another unsuccessful attempt on
their part to have our case dismissed on technicalities." In
closing, Rahn accused BAEF of "incompetence and arro-
gance" and "mismanagement or worse," and urged a congres-
sional investigation. Id.
On January 5-6, 1996, the Wall Street Journal Europe
published an op-ed piece by an author named Greg Rushford,
entitled "AID's Boondoggle in Bulgaria." J.A. 291. The
Rushford piece made several of the charges contained in the
October draft and the November Rahn letter. It accused
BAEF of "arrogance" and "shoddy performance," stemming
"largely from a management cadre who spend most of their
time drawing big salaries in comfortable offices." Four para-
graphs of the article discussed the dispute between BAEF
and Novecon. It noted that "Mr. Rahn, a respected former
chief economist at the U.S. Chamber of Commerce, accuses
the BAEF of breaching a contract to fund a residential and
commercial real estate project in Sofia ... [by] constantly
trying to alter the deal's terms until they caused the project
to collapse." The article quoted Ronald Utt, Novecon's man-
aging director, as stating that "[w]e could have gotten a
perfectly suitable Bulgarian architect for $15,000, but BAEF
decided they wanted a Chicago architect," and that BAEF
was "in over their heads." It charged that "armed with tax
dollars, [BAEF was] busy employing petty litigation tactics
against Novecon." And it specifically charged--as had the
Rahn letter--that BAEF sent "four high-priced lawyers into
federal court to fight over dubious claims about standing and
venue." Id.
On January 15, 1996, the Bulgarian newspaper 24 Hours
ran two stories related to the BAEF-Novecon dispute. See
J.A. 785-89 (translations). The first discussed the Rushford
article's analysis of BAEF's financial excesses and poor per-
formance. In that article, the reporter noted that BAEF
"became notorious for the big salaries of the employees, the
fancy offices in Chicago and the $200,000 that the 'Novecon'
owner, Richard Rahn, lost in a deal with the Fund." The
second article focused specifically on the Novecon litigation as
reported by Rushford. It repeated Rahn's claim that BAEF
frustrated the parties' agreement by repeatedly trying to
alter the terms of the project. It also repeated Utt's conten-
tion that BAEF had insisted that the architect be American.
The article concluded by noting that Rushford believed it was
not worth hiring expensive lawyers for a $200,000 case, and
that BAEF's strategy was to cause delays and large court
expenses. Id.
Immediately after receiving the op-ed piece, BAEF sent
the Wall Street Journal Europe a letter responding to Rush-
ford's allegations. The Journal published the response as a
letter to the editor on January 16, 1996. J.A. 796. BAEF's
letter set forth several assertedly factual inaccuracies about
BAEF contained in the Rushford article. Its sole reference
to Rahn and Novecon appeared in the final two sentences:
"Richard Rahn, whose lawsuit against us receives excessive
attention in the article, is entitled to and will have his day in
court. It is unfortunate that the Wall Street Journal Europe
has been used as a forum to buttress an otherwise meritless
complaint." Id.
Thereafter, on January 18, 1996, BAEF sent a package of
materials to 570 individuals and organizations in the United
States and Bulgaria. The package sent to Americans con-
tained the Rushford article and BAEF's letter to the editor;
the Bulgarians received a copy of the 24 Hours article as well.
The cover letter, which is the focus of Novecon's defamation
claims, stated in relevant part:
We find it odd that Mr. Rushford would choose to write
about the Bulgarian-American Enterprise Fund, and
then devote nearly one-third of his opinion piece to a
lawsuit by a Dr. Richard Rahn on behalf of a Washing-
ton, D.C. firm called Novecon. Dr. Rahn, through Nove-
con, seeks to extort $200,000 of U.S. taxpayer money
from the BAEF as a fee for a real estate project that the
BAEF rejected because it turned out to be a veritable
"Brooklyn Bridge" of misrepresentation. Among other
problems, Novecon's client did not own the land on which
the project was to be developed--despite representations
by Novecon to the contrary. Since there was nothing to
sell, we did not buy their "Brooklyn Bridge."
J.A. 169.2
Following the circulation of the BAEF letter, Novecon and
Rahn amended their complaint to add a charge of defamation,
focusing particularly on the allegations that they had sought
to "extort $200,000 of taxpayer money," and that the project
was a "veritable Brooklyn Bridge of misrepresentations."
Am. Compl. p 33 (J.A. 359); see Rahn Reply Aff. p p A, B
(J.A. 295).
C
The district court issued three opinions which together
granted summary judgment against Novecon and Rahn on all
counts. In the first opinion, the district court granted sum-
mary judgment on the contract claims. Novecon v. BAEF
("Novecon I"), 967 F. Supp. 1382 (D.D.C. 1997). The court
held that the letters exchanged by Novecon and BAEF were
insufficient to allow a reasonable trier of fact to find a
contract between the parties, and rejected Novecon's alterna-
tive argument that it was entitled to damages on theories of
promissory estoppel or quantum meruit. The court conclud-
ed: "[T]he record is clear that BAEF extended only an 'offer
to negotiate' which Novecon 'accepted' ... [and which] consti-
tutes nothing more than an agreement to continue negotia-
tions.... Novecon cannot enforce any binding, legal obli-
gations against BAEF." Id. at 1389.
In its first and second opinions, the district court also
granted summary judgment against plaintiffs' defamation
claim, for two reasons. The court held that BAEF's letters
were entitled to First Amendment protection because plain-
tiffs were "limited-purpose public figures" and had failed to
__________
2 According to BAEF, the letters delivered to the American and
Bulgarian recipients were largely identical, with the exception of
the Brooklyn Bridge reference which was omitted from the letters
to the Bulgarians because it would not have been understood. See
J.A. 795.
show defendants had acted with the kind of malice necessary
to overcome the constitutional privilege. Novecon v.
Bulgarian-American Enterprise Fund ("Novecon II"), 977
F. Supp. 45, 49 (D.D.C. 1997); Novecon I, 967 F. Supp. at
1390 (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 351
(1974)).3 The court also held that BAEF's letters were
protected by the common-law privilege of self-defense, and
that BAEF had failed to show defendants had acted with the
kind of malice necessary to overcome that privilege. Novecon
II, 977 F. Supp. at 49-52. Finally, in its third opinion, the
court rejected plaintiffs' motion under Fed. R. Civ. P. 56(f) to
deny or stay summary judgment in order to permit Novecon
to obtain additional discovery. Novecon v. Bulgarian-
American Enterprise Fund ("Novecon III"), 977 F. Supp. 52,
53-54 (D.D.C. 1997).
II
We begin with plaintiffs' contract-related claims. We re-
view the district court's grant of summary judgment de novo.
Hunter-Boykin v. George Washington Univ., 132 F.3d 77, 79
(D.C. Cir. 1998). We may uphold that grant only if "no
reasonable fact-finder could conclude that an enforceable"
contract existed between the parties. Jack Baker, Inc. v.
Office Space Dev. Corp., 664 A.2d 1236, 1241 (D.C. 1995); see
Ekedahl v. COREStaff, Inc., No. 98-7119, 1999 WL 550970
(D.C. Cir. July 30, 1999), ___ F.3d ___, at *2-3.
A
Under the law of the District of Columbia, "for an enforce-
able contract to exist there must be both (1) agreement as to
all material terms; and (2) intention of the parties to be
bound." Jack Baker, 664 A.2d at 1238. The party asserting
the existence of an enforceable contract bears the burden of
proof on the issue of contract formation. See id.; Ekedahl,
1999 WL 550970 at *3. "Where the parties contemplate a
__________
3 In Novecon I the court found only Rahn to be a limited-purpose
public figure. See 967 F. Supp. at 1390-91. In Novecon II it found
Novecon to be one as well. See 977 F. Supp. at 49.
subsequent written contract, this burden is particularly oner-
ous." Jack Baker, 664 A.2d at 1238.
Plaintiffs contend that the four corners of the contract
between Novecon and BAEF may be found in the four
communications the parties exchanged between May 20th and
June 3, 1993. Novecon Br. at 18. Specifically, Novecon
contends that by accepting the terms of the Fund's May 20th
letter and June 3rd revised fee schedule, Novecon's June 3rd
telefax "creat[ed] a binding contract." Am. Compl. p 17 (J.A.
354); Utt Aff. p 23 (J.A. 76).4 Having searched those four
corners, we do not find a contract within them.
Novecon's first letter, dated May 20, 1993, stated that the
terms it contained provided an "overview" but were not
"exhaustive," and that "undoubtedly there will be some need
to clarify certain points now or as we proceed." J.A. 146-47.
The first payment would be made, the letter said, only
"[u]pon completion of: a) Contract signing, b) Delivery of
unencumbered land title for Phase I and II, c) Transfer of the
land title, [and] d) Securing and delivery of the zoning
amendment." The Fund's willingness to compensate Nove-
con, it stressed, was "[c]ontingent on the signing of a defini-
tive agreement." Id.
BAEF's second letter, dated June 3, 1993, was no more
definitive. See J.A. 150-51. First, it said that a "revised fee
structure" would be "include[d] in our request to the Fund's
Board for final approval," thus indicating that there was at
least one more stage required before BAEF could enter into
a contract. Second, BAEF made clear that its offer would be
rescinded unless it received "certified documentation of the
sign off of all [Batsov] heirs by June 15, 1993." Finally, and
most significant, BAEF expressly characterized its offer as
an "offer to negotiate." Id.
In light of the plain language of these letters, and BAEF's
own characterization of its offer, we agree with the district
__________
4 The remaining communication, the June 1st fax from Novecon
to BAEF, proposed a revision of the fee schedule originally con-
tained in the Fund's May 20th letter. J.A. 148-49.
court's conclusion that "BAEF extended only an 'offer to
negotiate,' " and that when Novecon accepted that offer on
June 3rd it created "nothing more than an agreement to
continue negotiations." 967 F. Supp. at 1389; see generally
Bender v. Design Store Corp., 404 A.2d 194, 197 (D.C. 1979)
("All that was promised was that appellee would bargain in
good faith."). The letters made clear that they did not
contain all terms material to an agreement, and that those
terms would be contained in a "definitive agreement" to be
finalized at the "contract signing" expressly contemplated in
the May 20th letter. See 967 F. Supp. at 1387. In the
District of Columbia, "parties will not be bound to a prelimi-
nary agreement unless the evidence presented clearly indi-
cates that they intended to be bound at that point." Jack
Baker, 664 A.2d at 1239. There is no such evidence here.
There are other significant indications of nonfinality as
well. One is the June 3rd letter's reference to the fact that
the terms would have to be submitted to the Board for
"final approval." See Jack Baker, 664 A.2d at 1237, 1241
(describing requirement that Philippine embassy construc-
tion contract "will be subject to the approval of the Philip-
pine Department of Foreign Affairs" as "striking" indication
of nonfinality). A second is that this was the sort of com-
plex, expensive, multi-stage transaction in which a subse-
quent formal contract would ordinarily be expected. See id.
at 1240-41; see also R.G. Group, Inc. v. Horn & Hardart
Co., 751 F.2d 69, 77 (2d Cir. 1984).
Finally, BAEF's letter made clear that there were a num-
ber of key contingencies that would have to be satisfied
before the agreement could be concluded. First among these
was the transmission of "certified documentation of the sign
off of all [Batsov] heirs." J.A. 151. Indeed, in accepting "the
terms of the Fund's" offer on June 3rd, Novecon acknowl-
edged its understanding that agreement was "contingent
upon a resolution of any and all outstanding uncertainties
regarding ownership of [the building] sites," and "accept[ed]
the responsibility to resolve the uncertainties to the Fund's
satisfaction by the 15 June 1993 deadline." Id. at 152. Yet,
as Novecon notes in its brief, those uncertainties were never
resolved. Novecon Br. at 24.
In sum, we agree with the district court that no reasonable
trier of fact could conclude that the exchange of communica-
tions between Novecon and BAEF constituted an agreement
by both parties to be bound by their terms. Rather, the
letters were "merely a part of the preliminary negotiations
looking toward the execution of a contract in writing and by
[their] own terms negate[d] the idea that [they] were intend-
ed as an offer which thereafter could be accepted ... without
the necessity of a formal written document covering all the
terms." Simplicio v. National Scientific Personnel Bureau,
Inc., 180 A.2d 500, 502 (D.C. 1962).
B
As an alternative to its breach of contract claim, Novecon
contends that it is entitled to relief on either of two related
theories: promissory estoppel or quantum meruit. The core
requirements of those theories, however, are absent here.
Novecon argues that it "reasonably relied to [its] detriment
on the Fund's promises to provide" funding for the project,
and that in reliance on those promises it "expended consider-
able amounts of time and money." Am. Compl. p 42. Al-
though "for purposes of estoppel, a promise need not be as
specific and definite as a contract, ... in the final analysis
there must be a promise"--and it must be more than merely
a promise to "bargain in good faith." Bender, 404 A.2d at
196-97. For the reasons stated above, we can find no greater
promise here.
Novecon also contends that it is entitled to recover on a
theory of quantum meruit or unjust enrichment for the
benefit it conferred on the Fund by "perform[ing] valuable
services for the Fund in connection with efforts to develop"
the project. Am. Compl. p 45. To prevail on such a claim, a
party "must show that the services [it performed] were
beneficial to the recipient." Fred Ezra Co. v. Pedas, 682 A.2d
173, 176 (D.C. 1996); In re Rich, 337 A.2d 764, 766 (D.C.
1975) ("The essential elements for recovery ... [include]
valuable services being rendered ... for the person sought to
be charged."). Novecon alleges that "[t]he benefit[s] derived
by BAEF" were Novecon's "(1) meeting with the landowners
to try to negotiate a different percentage of the deal and (2)
meeting with Bulgarian officials to obtain zoning for the
project." Novecon Br. at 25. But "a party's expenditures in
preparation for performance that do not confer a benefit on
the other party do not give rise to a restitution interest."
Restatement (Second) of Contracts s 370 cmt. a (1980); see
Richardson v. Green, 528 A.2d 429, 438 n.12 (D.C. 1987)
(holding that plaintiff may not recover if "defendant received
no value"). Here there is insufficient evidence that the Fund
received a valuable benefit from Novecon's unsuccessful ef-
forts to negotiate with the Batsovs and Bulgarian officials.
III
We turn next to Novecon's defamation claim, which is
based on the cover letter BAEF sent to 570 individuals and
organizations in the United States and Bulgaria. The letter
enclosed the Wall Street Journal and 24 Hours articles, as
well as BAEF's letter to the editor. The allegedly defamato-
ry statements were the cover letter's contentions that:
Dr. Rahn, through Novecon, seeks to extort $200,000 of
U.S. taxpayer money from the BAEF as a fee for a real
estate project that the BAEF rejected because it turned
out to be a veritable "Brooklyn Bridge" of misrepresen-
tation. Among other problems, Novecon's client did not
own the land on which the project was to be developed--
despite representations by Novecon to the contrary.
Since there was nothing to sell, we did not buy their
"Brooklyn Bridge."
J.A. 169. The district court dismissed this claim on the basis
of both First Amendment and common-law privileges. As we
find the common-law privilege sufficient to sustain the dis-
missal, we do not address BAEF's First Amendment argu-
ment.
The District of Columbia recognizes "self defense" as a
qualified privilege constituting a complete defense to a claim
of libel or defamation. See Mosrie v. Trussell, 467 A.2d 475,
477 (D.C. 1983); Dickins v. International Bhd. of Teamsters,
171 F.2d 21, 24 (D.C. Cir. 1948). "When the author of a libel
writes ... for the protection of his own rights or interests,
that which he writes is a privileged communication unless the
writer be actuated by malice." Dickins, 171 F.2d at 24.
"[T]he existence of the privilege is a question of law for the
court[;] whether it was abused by the defendant, is a ques-
tion of fact for the jury." Mosrie, 467 A.2d at 477; see
Columbia First Bank v. Ferguson, 665 A.2d 650, 655 (D.C.
1995); Altimont v. Chatelain, Samperton & Nolan, 374 A.2d
284, 290 (D.C. 1977).
There is no question but that the privilege applies in this
case. BAEF and its management had been subjected to
serious attacks in letters to Congress and articles in the
press, and were privileged to respond to those attacks in self
defense.5 Thus, "the dispositive issue in this case, as in most
cases involving an assertion of qualified privilege, is whether
there has been sufficient evidence of malice to overcome the
privilege." Columbia First, 665 A.2d at 656. The burden of
__________
5 Although the District of Columbia cases do not expressly set out
the requirements for coming within the protection of the self-
defense privilege, they do establish the elements of the related
"common interest" privilege. To be protected by that privilege,
"the statement must have been (1) made in good faith, (2) on a
subject in which the party communicating has an interest ... , (3)
to a person who has such a corresponding interest." Moss v.
Stockard, 580 A.2d 1011, 1024 (D.C. 1990). For essentially the
same reasons discussed below, those requirements are satisfied
here. BAEF made the statement in the good-faith belief that it
was necessary to protect the interests of the Fund from what it saw
as a false and potentially damaging attack on its reputation for fair
dealing, and sent it to those with either an interest in or business
dealings with the Fund. While " '[e]xcessive publication,' defined as
publication to those with no common interest in the information
communicated, or publication not reasonably calculated to protect
or further the interest, will render [a] statement non-privileged,"
id., for the reasons discussed in Part III(B), we do not find BAEF's
statements to have been excessively published.
proof to make that showing rests on the plaintiff. Mosrie,
467 A.2d at 477; Altimont, 374 A.2d at 290.
District of Columbia law makes it very difficult for a
plaintiff to overcome a qualified privilege. As the Court of
Appeals has made clear, the common-law malice necessary to
overcome the self-defense privilege is considerably different
from the "actual malice" necessary to overcome the First
Amendment privilege. The latter requires publication with
knowledge that a statement was false or with reckless disre-
gard as to whether it was false. See Moss v. Stockard, 580
A.2d 1011, 1026 n.29 (D.C. 1990) (citing New York Times v.
Sullivan, 376 U.S. 254 (1964)). Common-law malice, by
contrast, "emphasize[s] bad faith and evil motive." Id.; see
Mosrie, 467 A.2d at 477. It is "the doing of an act without
just cause or excuse, with such a conscious indifference or
reckless disregard as to its results or effects upon the rights
or feelings of others as to constitute ill will." Moss, 580 A.2d
at 1025; Mosrie, 467 A.2d at 477. And "unless the statement
itself is 'so excessive, intemperate, unreasonable, and abusive
as to forbid any other reasonable conclusion than that the
defendant was actuated by express malice,' malice must be
proven by extrinsic evidence." Moss, 580 A.2d at 1024 (quot-
ing Ford Motor Credit Co. v. Holland, 367 A.2d 1311, 1314
(D.C. 1977)); see Columbia First, 665 A.2d at 656.
Moreover, "the mere existence of ill will on the part of the
publisher toward the subject of the publication does not
defeat the publisher's privilege if the privilege is otherwise
established by the occasion and a proper purpose." Mosrie,
467 A.2d at 477. Rather, the "court looks to the primary
motive by which the defendant is apparently inspired; and,
the fact that he feels resentment and indignation towards the
plaintiff and enjoys defaming him will not forfeit the privilege
so long as the primary purpose is to further the interest
which is entitled to protection." Id. at 477-78; see Columbia
First, 665 A.2d at 656. Most significantly,
if the language of the communication and the circum-
stances attending its publication by the defendant are as
consistent with the nonexistence of malice as with its
existence, there is no issue for the jury, and it is the duty
of the trial court to direct a verdict for the defendant.
Mosrie, 467 A.2d at 478 (quoting National Disabled Soldiers'
League, Inc. v. Haan, 4 F.2d 436, 441-42 (D.C. 1925)); see
Altimont, 374 A.2d at 291; Dickins, 171 F.2d at 25.
A
In this case we cannot deduce the necessary malice from
BAEF's words alone. To be sure, the Fund's description of
the Novecon lawsuit as an attempt "to extort $200,000 of U.S.
taxpayer money from the BAEF," and its description of the
problems over land title as "a veritable 'Brooklyn Bridge' of
misrepresentation," were harsh and intemperate. But we
cannot say that the statement was " 'so excessive, intemper-
ate, unreasonable, and abusive as to forbid any other reason-
able conclusion than that the defendant was actuated by
express malice.' " Moss, 580 A.2d at 1024 (quoting Ford
Motor, 367 A.2d at 1314).
We cannot say so particularly because the statements the
District of Columbia Court of Appeals found protected by the
self-defense privilege in Mosrie v. Trussell were at least as
harsh and intemperate as those at issue here. In that case,
the Washington Post had reported a series of complaints of
incompetence and racism against Trussell, the Deputy Chief
of the Metropolitan Police Department, made by members of
the Homicide Branch. The Chief of Police asked Trussell to
respond to the complaints. Trussell responded by making
allegedly defamatory statements about Mosrie, the command-
er of the Homicide Branch, whom he suspected of being the
source of the Washington Post article. Specifically, these
statements included Trussell's suspicion that Mosrie was:
manipulating his pay records, running his outside busi-
nesses on police time, using his police cruiser for person-
al business; and that he was often absent from work, did
not respond to investigations after normal working hours
and was not adequately informed as to homicide investi-
gations.
Mosrie, 467 A.2d at 477. Notwithstanding the court's de-
scription of these statements as "alleged dereliction of duty
and possible criminal abuses," the court concluded that "[a]ny
finding of malice would be based only on speculation, which is
not sufficient to send the issue to the jury." Id. at 478.
"Mere vehemence, even exaggerated statements ... will not,"
the court observed, "destroy the privilege or necessarily
present a question of fact." Id. at 479 (quotation omitted).
Moreover, notwithstanding that plaintiff had shown "evidence
that Trussell's communications were inspired by resentment
and indignation at Mosrie," the court held, he was still
"privileged to explain to ... the Chief his opinion as to the
motivations behind the list of complaints against him." Id.
Because "at most, the evidence [was] as consistent with the
nonexistence of malice on the part of Trussell toward Mosrie
as it [was] with the existence," the court concluded that a
directed verdict against the plaintiff was in order. Id. at 480.
Although BAEF's characterization of Novecon as attempt-
ing to "extort" taxpayer money and to sell it the "Brooklyn
Bridge" was harsh, it was no harsher than Trussell's leveling
of charges of "criminal abuses" against another police officer.
While Novecon contends that the reader would interpret
BAEF's letter as literally charging it with a crime (extortion),
we think that unlikely. The context of the statement, which
was contained in a cover letter to a package of material
including the original Wall Street Journal article, made clear
to the reader that the reference was to Novecon's civil lawsuit
and not to some nefarious scheme. Such usage is perfectly
consistent with dictionary definitions of "extort." See, e.g.,
Webster's Third New International Dictionary 806 (1986)
(defining extort as "to obtain from an unwilling or reluctant
person by importunity, argument or ingenuity ... ").
Indeed, the statement at issue here is quite close to that
considered by the Supreme Court in Greenbelt Cooperative
Publishing Assoc. v. Bresler, 398 U.S. 6 (1970). There, a
developer was accused of "blackmail[ing]" the city council to
obtain a zoning variance by simultaneously negotiating to sell
the city a piece of desirable real estate. "It is simply
impossible to believe," the Court said, "that a reader who
reached the word 'blackmail' in either article would not have
understood exactly what was meant: it was Bresler's [the
developer's] public and wholly legal negotiating proposals that
were being criticized." Id. at 14. The court continued:
No reader could have thought that [the defendants] were
charging Bresler with the commission of a criminal of-
fense. On the contrary, even the most careless reader
must have perceived that the word was no more than
rhetorical hyperbole, a vigorous epithet used by those
who considered Bresler's negotiating position extremely
unreasonable.
Id.
As with the use of "blackmail" in Greenbelt, here the word
"extort" was used as "a vigorous epithet" by "those who
considered" Novecon's litigating position "extremely unrea-
sonable." And there can be no question that BAEF actually
believed that Novecon's litigating position--its claim that
BAEF had breached a binding contract and so should pay it
$200,000--was unreasonable. BAEF vigorously defended it-
self against Novecon's contract claim in the district court, and
we have upheld that defense. Accordingly, we cannot find
that BAEF's choice of epithets " 'forbid[s] any other reason-
able conclusion than that the defendant was actuated by
express malice.' " Moss, 580 A.2d at 1024 (quoting Ford
Motor, 367 A.2d at 1314).6
B
As BAEF's statement is insufficient on its own to establish
malice, Novecon must prove malice "by extrinsic evidence."
Moss, 580 A.2d at 1024 (quoting Ford Motor, 367 A.2d at
__________
6 We reach the same conclusion with respect to the use of the
"Brooklyn Bridge" metaphor to describe, inter alia, the dispute over
the Batsovs' title to the property. As the district court found, the
term was "a figure of speech that reflected the defendant's assess-
ment of Novecon's contract offer, obviously subject to many debata-
ble interpretations." Novecon II, 977 F. Supp at 51.
1314). Having no direct extrinsic evidence of ill will on the
part of BAEF, Novecon turns to circumstantial evidence.
The first piece of circumstantial evidence offered by Nove-
con is the fact that "defendants made their defamatory attack
on plaintiffs for statements made by a third party." Novecon
Br. at 14. "Neither Novecon nor Dr. Rahn," plaintiffs con-
tend, "were the sources of the Rushford article." Hence, the
"counter attack was against the wrong party."7 Id. But
Novecon cites no case for the proposition that the self-defense
privilege may be wielded only where the plaintiff is the known
attacker. Since the attacks specifically referred to the Nove-
con matter--as an example of BAEF's "arrogance," "shoddy
performance," or worse--any reply would have had to re-
spond to the charges concerning BAEF's dealings with Nove-
con, regardless of the source of those allegations.
Moreover, Mosrie suggests that the privilege is not limited
to replies to known attackers. Although Trussell "suspected"
Mosrie of being the source of the critical Washington Post
article, Mosrie apparently was not named in the article.
Here, BAEF certainly suspected that Novecon and Rahn
were the sources for Rushford's Wall Street Journal article.
Regardless whether that was true, the suspicion was not
unreasonable in light of the parallels between the article's
charges and those contained in both Rahn's letters to Con-
gress and the two-page draft the American Ambassador gave
to BAEF. In addition, Ronald Utt, Novecon's managing
director, was quoted by name in the Rushford article. Under
District of Columbia law, BAEF was therefore "privileged to
explain ... [its] opinion as to the motivations behind the list
of complaints against" it. Mosrie, 467 A.2d at 480. It "had
__________
7 Plaintiffs do not dispute that Rahn was the author of the letter
sent to members of Congress. At oral argument they suggested
that the letter could not trigger a right of reply because Rahn had
the right to petition Congress. Yet, even if that right would have
given Rahn his own privilege in the event BAEF had sued him for
defamation, plaintiffs cite no case for the proposition that the fact
an attack is communicated to Congress deprives a citizen of the
common-law privilege of self-defense.
the right to repel the attack ... and to retort upon its
assailant if such retort was a necessary part of its defense or
fairly arose out of the charges made against" it. Id. at 479
(quotation omitted).
Novecon's second piece of circumstantial evidence of malice
is the fact that BAEF sent its letter to 570 people in the
United States and Bulgaria. Novecon contends that this
response was so disproportionate as to be "alone sufficient
evidence to support a jury inference of malice." Novecon Br.
at 17. BAEF's single letter to the editor of the Wall Street
Journal, Novecon notes, was a measured response. The 570
letters, however, assertedly took the response outside the
scope of the privilege.
The district court disagreed, as do we. As the court said,
"the common law qualified privilege asserted here does not
demand that defendants demonstrate failsafe precision in
identifying third parties with a sufficient interest in BAEF's
public controversy." 977 F. Supp. at 50.8 BAEF sent its
letter to "U.S. government agencies, Bulgarian officials, and
actual and potential business relations within the Bulgarian
private sector." Id. at 49. Specifically, the Fund "attempted
to reach persons whose opinions of BAEF were, or reason-
ably could have been, affected by plaintiffs' comments and the
ensuing wave of negative publicity." Id. at 50. Approximate-
ly five hundred of the letters went to Bulgaria, with all but a
handful of those going to borrowers from the Fund. Bauer
Aff. p 91 (J.A. 472); Schiller Aff. p 59 (J.A. 726). BAEF
could not limit itself to readers of the Wall Street Journal,
__________
8 The Restatement (Second) of Torts states:
If on an occasion giving rise to a conditional privilege the
publisher mistakenly communicates the defamatory matter to
some person to whom he is not otherwise privileged to publish
it, he is protected if ... he reasonably believes that the person
to whom he communicates it is a person whose knowledge of
the matter would be useful in the protection of the interests in
question.
Restatement (Second) of Torts s 604 cmt. e (1977) (quoted in
Novecon II, 977 F. Supp. at 50).
because the Rushford article had been republished in the
Bulgarian press and Novecon had sent its own letters directly
to members of Congress. As the district court explained,
"defendants mailing to several hundred addressees must be
viewed in light of the negative press coverage BAEF received
in Bulgarian and international newspapers, reaching tens of
thousands of readers." 977 F. Supp. at 55-56. Compare
Dickins, 171 F.2d at 23-25 (finding no showing of malice
where Teamsters' union responded to critical newspaper arti-
cles by attacking critics in Teamsters magazine sent to
"400,000 Teamsters and about 1,200 others, including all
members of Congress, a number of colleges, libraries, news-
papers and other periodicals").
Finally, we reject Novecon's assertion that the district
court improperly denied its request for discovery, under
Federal Rule of Civil Procedure 56(f), of the names of the 570
recipients of BAEF's letter. We review such claims under an
abuse of discretion standard. See Paquin v. Federal Nat'l
Mortgage Assoc., 119 F.3d 23, 28 (D.C. Cir. 1997). Plaintiffs'
principal argument is that the names could have shown "that
BAEF's letter may have reached too broad an audience to
constitute a reasonable defense of its reputation." Novecon
II, 977 F. Supp. at 55. But as the district court noted, BAEF
did disclose the categories of recipients (e.g., members of
Congress, borrowers from the Fund, etc.). Id. at 56. Given
that level of disclosure, and the leeway a defendant has to
determine those to whom it must reasonably communicate its
response, we cannot dispute the district court's conclusion
that production of the names was not--as required by Rule
56(f)--"essential to justify [Novecon's] opposition" to sum-
mary judgment. Id. at 54, 55-56.
C
In sum, we conclude that because no reasonable factfinder
could find that "the language of the communication and the
circumstances attending its publication by the defendant"
were not at least "as consistent with the nonexistence of
malice as with its existence, there is no issue for the jury."
Mosrie, 467 A.2d at 478 (quoting National Disabled Soldiers,
4 F.2d at 441-42); see Altimont, 374 A.2d at 292. It there-
fore was "the duty of the trial court to direct a verdict for the
defendant" on Novecon's claim of defamation. Mosrie, 467
A.2d at 479.
IV
For the foregoing reasons, the judgment of the district
court is affirmed.9
__________
9 Although BAEF filed counterclaims against Novecon, it advised
the district court that it would withdraw them if its motion for
summary judgment were granted in full. Because the district court
granted BAEF's motion, it dismissed the counterclaims. 967
F. Supp. at 1391; 977 F. Supp. at 52. The Fund has filed a cross-
appeal of that dismissal, but states that it seeks reinstatement only
if we reverse the district court's judgment. BAEF Br. at 39;
BAEF Reply Br. at 1-2. Because we have affirmed that judgment,
we treat the cross-appeal as waived and direct that it be dismissed.