It’s déjà vu all over again

Three “international businessmen” claim they were defamed by certain statements contained in one of the reports comprising the “Trump Dossier.” The one-count defamation complaint against persons involved in the dossier’s creation alleges one (out of 17) reports in the dossier made false and defamatory statements about the plaintiffs. The defendants respond to the complaint by filing an anti-SLAPP special motion to dismiss.

If this sounds familiar, you are not experiencing déjà vu. The same three plaintiffs sued Fusion GPS and Glenn Simpson, who allegedly retained Christopher Steele to research any Russian connections to Donald Trump, in DC federal court last year. In that suit, which remains pending before Judge Leon, Fusion and Simpson have filed an anti-SLAPP special motion to dismiss (see prior blog entries on the federal court suit here and here).

In April, the same three plaintiffs sued Christopher Steele and Orbis Business Intelligence Ltd. in DC Superior Court. The Superior Court complaint mirrors the federal court complaint, alleging that certain statements and the headline in CIR 112 (the only report that mentions plaintiffs) are false and defamatory because they suggest plaintiffs and Alfa Group “cooperated in the alleged Kremlin-orchestrated campaign to interfere in the 2016 U.S. presidential campaign”; that Alfa Group is close to Putin and two of the plaintiffs have been giving him informal advice; and that a former Alfa Group employee gave Putin cash in the 1990’s and is now high up in the Putin administration, where he can facilitate communications between the plaintiffs and Putin.

Orbis and Steele filed an anti-SLAPP special motion to dismiss. In it, they argued the suit arose from an act in furtherance of the right of advocacy on issues of public interest because the complaint alleged the dossier was “published to a worldwide public” “to be used in connection with the election of the President of the United States.” Orbis and Steele argue CIR 112 reports on the “commercial and political relationship between Russian oligarchs and the Russian government,” which they argue is an issue of “incontrovertible public interest.”

Orbis and Steele argue the plaintiffs cannot show they are likely to prevail on the merits because, among other reasons, they are limited purpose public figures who cannot show the challenged statements were made with actual malice. The brief argues that, while the complaint appears to fault Steele’s reliance on unnamed sources and the fact CIR 112 was unverified, neither of these arguments is sufficient to show actual malice.

Plaintiffs’ opposition brief argued the Superior Court should deny defendants’ special motion to dismiss for multiple reasons. First, plaintiffs argued defendants could not invoke the DC anti-SLAPP statute because they are “non-resident foreigners who have not demonstrated deep ties to the United States.” Plaintiffs argue that, while the Superior Court can exercise personal jurisdiction over the defendants, the threshold for gaining rights protected by the First Amendment is higher, and has not been satisfied here. Plaintiffs highlight that, in 2014, a Louisiana federal court denied an anti-SLAPP motion filed by a British defendant on the basis that, as a non-resident alien, he was not entitled to free speech rights under either the United States or Louisiana constitution.

Second, plaintiffs argue that, even if defendants could simply rely upon the allegations in the complaint, it does not show defendants engaged in the expression of views on issues of public interest. Next, plaintiffs argue the DC anti-SLAPP statute was not intended to protect defendants because defendants are not engaging in “grassroots activism” and are not “District residents or average Americans being ‘sued into silence.’” Finally, plaintiffs argue they are likely to succeed on the merits of their single-count defamation claim because they have satisfied all of the elements of the claim. On the actual malice argument upon which defendants focused, plaintiffs argue they are not limited purpose public figures and, in any event, have either adduced sufficient evidence of actual malice, or could do if allowed limited discovery.

The Orbis/Steele reply brief brilliantly dissects and guts the arguments made by the plaintiffs, arguing:

  • “[t]he Court’s adherence to the First Amendment in this civil defamation case is neither optional nor dependent on the Defendants’ citizenship”;
  • “nothing in the Act restricts its application to D.C. residents”;
  • the plaintiffs’ claim that the suit does not arise from an act in furtherance of the right of advocacy on issues of public interest defies “the plain language and policy of the Act”;
  • plaintiffs “cannot distance themselves from the litany of sustained publicity that they have sought and garnered” “that address their relationship with the Russian government and Putin in particular,” making them at least limited-purpose public figures; and
  • plaintiffs failed to show any evidence of actual malice, let alone the clear and convincing evidence required by law.

Finally, with respect to plaintiffs’ plea for discovery, the reply brief tersely states “research has uncovered no case in any District of Columbia court where a defamation plaintiff was granted limited discovery under the Anti-SLAPP Act when faced with a special motion to dismiss. Plaintiffs do not deserve to be the first.”

Leslie Machado

About: Leslie Machado

Mr. Machado counsels and advises a diverse range of clients on various areas of law. He is also an experienced litigator, having tried cases to verdict in state and federal courts. View all posts by Leslie Machado
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