In 1987, I heard Welcome to the Jungle, and its distinctive opening guitar riff, and it was unlike anything I had ever heard before. One year later, GNR released Patience, a quiet song that opened with Axl whistling melodically into a mike. One of the lines in that song was “all we need is just a little patience.” I thought about that line recently when I saw that the parties in the Deripaska v. Associated Press appeal had jointly stipulated to the dismissal of their appeal with prejudice. The dismissal means we’re going to have to wait a bit longer to find out if the DC Circuit’s Abbas ruling remains good law following the DC Court of Appeals’ Mann ruling.
In the meantime, parties continue to file anti-SLAPP special motions to dismiss in DC federal court diversity cases. The latest comes in Fridman v. Bean LLC, where “three international businessmen” claim that they were defamed by certain statements contained in one of the reports comprising the “Trump Dossier.” The one-count defamation complaint alleges that the “overriding focus” of the dossier was “the alleged Kremlin-orchestrated campaign to interfere in the 2016 presidential election.” It alleges that one (out of 17) reports in the dossier make certain false and defamatory statements about the plaintiffs, including that:
- Alfa Group, a consortium in which plaintiffs are investors, is close to Vladimir Putin, that “[s]ignificant favors continue to be done in both directions,” and that “FRIDMAN and AVEN [are] still giving informal advice to PUTIN, especially on the US” and “currently are on very good terms with” him;
- a former Alfa employee, Oleg Govorun, who is now the head of a government department in Putin’s administration, “delivered illicit cash directly to PUTIN” “throughout the 1990s,” when Govorun was an “[Alfa] executive” and Putin was the Deputy Mayor of St. Petersburg;
- “GOVORUN had been Head of Government Relations at Alpha Group and in reality the ‘driver’ and ‘bag carrier’ used by FRIDMAN and AVEN to deliver large amounts of illicit cash to the Russian president, at that time deputy Mayor of St. Petersburg”
- Mr. Fridman “recently met directly with PUTIN” and that “much of the dialogue and business between them was mediated” by Govorun, the former [Alfa] employee; and
- “[Alfa] held ‘kompromat’ on PUTIN and his corrupt business activities from the 1990s whilst although not personally overly bothered by [Alfa’s] failure to reinvest the proceeds of its TNK oil company sales into the Russian economy since, the Russian president was able to use pressure on this count from senior Kremlin colleagues as a lever on FRIDMAN and AVEN to make them do his political bidding.”
The defendants (Fusion GPS and Glenn Simpson, who allegedly retained Christopher Steele to research any Russian connections to Trump) filed an anti-SLAPP special motion to dismiss the suit. They first argued that the claim arose from an act in furtherance of the right of advocacy on issues of public interest because it involved statements made in a place open to the public or a public forum, on issues of public interest (the relationship between Russian oligarchs and the Kremlin and alleged bribery of a high-level official).
The anti-SLAPP brief argues that the plaintiffs are not likely to succeed on the merits (in a companion 12(b)(6) brief, defendants persuasively argue that the vast majority of the challenged statements are opinions, hyperbole or not defamatory; the plaintiffs are public figures who have failed to plead facts showing that the statements were made with actual malice; the challenged statements were either not published at all or their “publication” was privileged; and that the neutral reportage doctrine protects the statements).
After acknowledging, as they must, the DC Circuit’s Abbas opinion, the defendants assert “that decision has since been overtaken by the D.C. Court of Appeals’ ruling in Competitive Enterprise Institute v. Mann” because, according to them, the underpinnings for that decision (the standard under the DC anti-SLAPP statute and that it only created a procedural mechanism, and not a substantive right) were “rejected” and “refuted” in Mann. Thus, the defendants argue, “[g]iven that Abbas—premised on an incorrect understanding of the Anti-SLAPP Act—is no longer good law, this Court should instead revert to the legion authority within this federal district and across the nation that such laws are applicable in federal diversity actions.” We will see.
In the meantime, for those of you who don’t remember, Patience ended with the following refrain:
Need a little patience
Just a little patience
Some more patience
Need some patience
Could use some patience
Gotta have some patience
All it takes is patience
Just a little patience
Is all you need