Filed

D.C. Superior Court
08/20/2018 
Clerk of the Court

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

CIVIL DIVISION
GERMAN KHAN, et at.
v. Case No. 2018 CA 002667 
ORBIS BUSINESS INTELLIGENCE .
LIMITED, et at.
ORDER

The Court grants the special motion to dismiss ?led by defendants Orbis Business
Intelligence Limited (?Orbis?) and Christopher Steele under the D.C. Act, D.C.
Code 16-5501 to -5505. The Court therefore denies as moot Defendants? motion to dismiss
under Rule 12(b)(6)for failure to state a claim upon which relief can be granted.

This case involves what has become known as the ?Steele Dossier.? The relatively small
portion of the Steele Dossier at issue in this case discusses the relationship between plaintiffs
German Khan, Mikhal Fridman, and Petr Aven and the Russian government, but it does not
discuss speci?c information linking them to any Russian interference in the 2016 US.
presidential election or to any speci?c American candidate. Defendants? special motion to
dismiss does not require the Court to determine whether any information in the Steele Dossier is
accurate or inaccurate. The purpose of such a motion is not to determine whether the defendant
actually committed the tort of defamation. See Competitive Enterprise Institute v. Mann, 150
A.3d 1213, 1230 (D.C. 2016). The Court concludes only that the Act requires
dismissal of this case because Defendants have made a prima facie case that the Act applies to
their provision of this portion of the Steele Dossier to the media, and Plaintiffs have not
submitted evidence that Defendants knew any of this information was false or acted with

reckless disregard of its falsity.

I. BACKGROUND

On April 16, 2018, Plaintiffs ?led a complaint against Defendants for defamation.
Plaintiffs make the following allegations in their complaint. Plaintiffs are international
businessmen who are the bene?cial owners of Alfa-Bank (aka. Alfa Group), which is based in
Russia; Mr. Fridman and Mr. Khan are each citizens of both Russia and Israel, and Mr. Aven is a
citizen of Russia.1 Complaint 1111 l, 15. Mr. Steele is a UK. citizen and a principal of Orbis, a
U.K.-based company. See id. 1111 16-17. Defendants were hired in June 2016 by Fusion GPS
(?Fusion?), a Washington, D.C.-based firm that conducts political opposition research, to
compile information about then-candidate Donald J. Trump?s ties to Russia and Vladimir Putin.
Id. 11 5. Fusion was originally hired during the primary phase of the 2016 election cycle by
Republicans. Id. After the Republican convention, Fusion was hired by the Democratic
National Committee and the campaign of Hillary Clinton. Id.

Mr. Steele compiled the Steele Dossier between June 2016 and October 2016. See
Complaint 1111 5-8. The Steele Dossier consists of seventeen Company Intelligence Reports
Id. This case focuses on CIR 112, a one-and-a?half page document entitled
PRESIDENTIAL ELECTION: GROUP 
CIR 112 (Special Motion to Dismiss EX. B). CIR 112 identifies Mr. Fridman, Mr. Aven, and
Mr. Khan as ?oligarchs? who lead the Alfa Group. The summary makes three points:

0 Alfa Group has a close relationship with President Vladimir Putin of Russia: ?Significant
favours continue to be done in both directions and FRIDMAN and AVEN still giving

informal advice to PUTIN, especially on the 

 

1 Alfa-Bank is spelled as ?Alpha? throughout the Steele Dossier. The Court uses
Plaintiffs? spelling.

 The ?[k]ey intermediary? in the relationship is Oleg Govorun, who ?delivered illicit cash
directly to throughout the 19905 when President Putin was the deputy mayor of

St. Petersburg.

0 President Putin is not personally bothered about Alfa?s current lack of investment in

Russia, but he is ?able to exploit it as lever over Alpha interlocutors.?

The body of CIR 112 does not refer the 2016 US. presidential election. CIR 112 also does not
contain a speci?c allegation that any Plaintiff gave advice to President Putin relating to the
election or attempted to in?uence the election in any way, or that Alfa Group?s ?cooperation?
with the Russian government extended to the election. CIR 112 states that and
AVEN continued to give informal advice to PUTIN on foreign policy, and especially about the
US where he distrusted advice being given to him by officials.? CIR 112 states that Mr. Fridman
and Mr. Aven used Mr. Govorun in the 1990s to ?deliver large amounts of illicit cash to the
Russian president, at the time deputy Mayor of St. Petersburg.?

In the summer of 2016, Mr. Steele briefed members of the print and online media about
the contents of the Steele Dossier. Complaint 11 9. On January 10, 2017, BuzzFeed, Inc.
published the full Steele Dossier, including CIR 112. See id. 11 12.

On May 30, 2018, Defendants ?led a special motion to dismiss (?Motion?) and a motion
to dismiss under Rule On July 6, Plaintiffs filed an opposition to both the special
motion to dismiss and the Rule 12(b)(6) motion. On July 24, Defendants filed a reply
in support of their special motion to dismiss (?Reply?) and a reply in support of their Rule

12(b)(6) motion.

II. LEGAL STANDARD

A. The Act

(strategic lawsuit against public participation) is an action ?filed by one side
of a political or public policy debate aimed to punish or prevent the expression of opposing
points of view.? Mann, 150 A.3d at 1226 (quoting legislative history). The Act
tries ?to deter SLAPPs by ?extend[ing] substantive rights to defendants in a SLAPP, providing
them with the ability to file a special motion to dismiss that must be heard expeditiously by the
court.? Id. at 1235 (quoting legislative history). ?Consistent with the Act?s
purpose to deter meritless claims ?led to harass the defendant for exercising First Amendment
rights, true SLAPPs can be screened out quickly by requiring the plaintiff to present her evidence
for judicial evaluation of its legal sufficiency early in the litigation.? Id. at 1239.

?Under the District?s Act, the party filing a special motion to dismiss must
first show entitlement to the protections of the Act by ?mak[ing] a prima facie showing that the
claim at issue arises from an act in furtherance of the right of advocacy on issues of public
interest.? Mann, 150 A.3d at 1227 (quoting DC. Code 

?Once that prima facie showing is made, the burden shifts to the nonmoving party,
usually the plaintiff, who must ?demonstrate[] that the claim is likely to succeed on the merits.?
Mann, 150 A.3d at 1227 (quoting ?[O]nce the burden has shifted to the claimant,
the statute requires more than mere reliance on allegations in the complaint, and mandates the
production or proffer of evidence that supports the claim.? Id at 1233. considering a
special motion to dismiss, the court evaluates the likely success of the claim by asking whether a
jury properly instructed on the applicable legal and constitutional standards could reasonably
find that the claim is supported in light of the evidence that has been produced or proffered in

connection with the motion.? Id. at 1232. ?This standard achieves the Act?s goal

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of weeding out meritless litigation by ensuring early judicial review of the legal sufficiency of
the evidence, consistent with First Amendment principles, while preserving the claimant? 
constitutional right to a jury trial.? Id. at 1232-33.

?If the plaintiff cannot meet that burden [to establish a likelihood of success], the motion
to dismiss must be granted, and the litigation is brought to a speedy end.? Mann, 150 A.3d at
1227. Section 16-5502(d) provides, ?If the special motion to dismiss is granted, dismissal shall
be with prejudice.? Section l6-5502(d) also requires the Court to hold an ?expedited hearing? on
the motion and to issue a ruling ?as soon as practicable after the hearing.?

Under DC. Code the ?ling of a motion to dismiss generally results in an
automatic stay of discovery ?until the motion has been disposed of.? Section 
provides for an exception: ?When it appears likely that targeted discovery will enable the
plaintiff to defeat the motion and that the discovery will not be unduly burdensome, the court
may order that specified discovery be conducted.?

B. Defamation

?To succeed on a claim for defamation, a plaintiff must prove (1) that the defendant made
a false and defamatory statement concerning the plaintiff; (2) that the defendant published the
statement without privilege to a third party; (3) that the defendant?s fault in publishing the
statement met the requisite standard; and (4) either that the statement was actionable as a matter
of law irrespective of special harm or that its publication caused the plaintiff special harm.?
Mann, 150 A.3d at 1240 (quotation and brackets omitted).

statement is defamatory if it tends to injure the plaintiff in his trade, profession or
community standing, or lower him in the estimation of the community.? Mann, 150 A.3d at

1241 (quotation and brackets omitted). ?To evaluate whether a statement is capable of

defamatory meaning, courts employ a two-part framework that asks: whether a
communication is capable of bearing a particular meaning, and whether that meaning is
defamatory.? Zimmerman v. Al Jazeera America, LLC, 246 F. Supp. 3d 257, 273 (D.D.C. 2017)
(quotations and citation omitted).

In defamation cases that rely on statements made about public figures concerning matters
of public concern, plaintiffs must prove by clear and convincing evidence that defendants
acted with actual malice. Mann, 150 A.3d at 1251-52. plaintiff may prove actual malice by
showing that the defendant either (1) had subjective knowledge of the statement?s falsity, or (2)
acted with reckless disregard for whether or not the statement was false.? [01. at 1252 (quotation
omitted); see New York Times v. Sullivan, 376 US. 254, 280-81 (1964). ?The ?reckless
disregard? measure requires a showing higher than mere negligence, the plaintiff must prove that
?the defendant in fact entertained serious doubts as to the truth of [the] publication.? Mann, 150
A.3d at 1252 (quoting St. Amanz? v. Thompson, 390 US. 727, 731 (1968)).

The ?actual malice? standard applies to statements about public ?gures. A public ?gure
can be either a limited-purpose public ?gure or a general-purpose public ?gure:

General purpose public figures because of their position of such pervasive power

and in?uence are deemed public ?gures for all purposes. Limited-purpose public

?gures, that is, individuals who assume roles in the forefront of particular public

controversies in order to in?uence the resolution of the issues involved, are

deemed public figures only for purposes of the controversy in which they are

in?uential.

Doe No. I v. Burke, 91 A.3d 1031, 1041 (DC. 2014) (citations and quotations omitted). The
Court of Appeals has adopted a three-part test as a roadmap to determine whether an individual
is a limited-purpose public figure. Moss v. Stockard, 580 A.2d 1011, 1030 (DC. 1990)

(following Waldbaum v. Fairchild Publications, Inc, 627 F.2d 1287 (DC. Cir. 1980)). The

Court ?should first decide whether there is a public controversy, and determine its scope.? Moss,

580 A.2d at 1030. ?[T]his inquiry has two components: (1) whether the controversy to which
the defamation relates was the subject of public discussion prior to the defamation, and (2)
whether a reasonable person would have expected persons beyond the immediate participants in
the dispute to feel the impact of its resolution.? Id. (quotation omitted). Second, the Court must
determine the plaintiff? role in the controversy: ?The plaintiff must have achieved a special
prominence in the debate, and either must have been purposely trying to in?uence the outcome
or could realistically have been expected, because of his position in the controversy, to have an
impact on its resolution.? Id. (quotation from Waldbaum omitted). ?In undertaking this analysis,
a court can look to the plaintiffs past conduct, the extent of press coverage, and the public
reaction to his conduct and statements.? Waldbaum, 627 F.2d at 1297. The third and last
?question is whether the alleged defamation was germane to the plaintiffs participation in the
controversy.? Moss, 580 A.2d at 1031.
DISCUSSION

Plaintiffs make four arguments: Defendants cannot seek protection under the Anti-
SLAPP Act because they are not entitled to any protections under the First Amendment; 
Defendants do not make a prima facie case under the Act that Plaintiffs? claims
arise from an act in furtherance of the right of advocacy on issues of public interest; Plaintiffs
have shown they are likely to succeed on the merits; and Plaintiffs are at least entitled to
targeted discovery to enable them to defeat the motion. The Court addresses each argument in
turn.

A. Applicability of First Amendment protections

Plaintiffs contend that the Act does not apply unless the First Amendment

applies and that Defendants do not have First Amendment rights because Mr. Steele is a non-

resident alien with British citizenship and Orbis is a U.K-based company. See Opp. at 1. The
Court does not agree.

The Court assumes without deciding that the Act applies only to conduct
that is protected by the First Amendment. ?To establish the grounds for either of the two
procedural protections the statute affords dismissal of the suit or quashing of a
subpoena the moving party must show that his speech is of the sort that the statute is designed
to protect.? See Doe N0. 1, 91 A.3d at 1036 (emphasis added). The Act does not explicitly limit
its protection to activity that is also protected by the First Amendment, and indeed the Act?s
legislative history indicates that the Council intended the Act to apply more broadly.2 In
addition, by its terms, the Act does not limit its protections to US. citizens or
entities. Although Plaintiffs argue otherwise (Opp. at the plain language of DC. Code 16-
5502(a) indicates that any party can ?le a special motion to dismiss. Reading an implied
limitation to District residents into the Act would be contrary to the purposes of the Act and the
First Amendment to provide broad protection for speech on issues of public interest (as the Court

discusses in the next paragraph). In addition, Plaintiffs have not cited, and the Court is not aware

 

2 Section of the initial version of the Act introduced in June 2010
de?ned protected activity to include ?any other conduct in furtherance of the exercise of the
constitutional right to petition the government or the constitutional right of free expression in
connection with an issue of public interest.? See Bill 18-893: Act of 2010?
(Motion Ex. A). In September 2010, the American Civil Liberties Union of the Nation?s Capital
proposed changing this de?nition because the ?purpose of an law is to
provide broader protection than existing law already provides,? and courts should not have to
determine whether conduct is covered by the Constitution before they can determine whether it is
protected by the Act. See Testimony of the American Civil Liberties Union of the Nation?s
Capital at 5 (Motion Ex. A). Section codi?es the proposed alternative
by making the Act applicable to ?Any other expression or expressive conduct that involves
petitioning the government or communicating views to members of the public in connection with
an issues of public interest.? See id. at 5.

of, any case holding that the defenses that a defendant in a defamation case may assert under
D.C. law or the First Amendment depend on whether the defendant is a U. S. citizen or entity.3
Plaintiffs contend that even if Defendants? speech involves issues of public interest in the
United States, it is unprotected by the First Amendment because Mr. Steele is not a US. citizen
or resident and Orbis is not a US. company. However, advocacy on issues of public interest has
the capacity to inform public debate, and thereby furthers the purposes of the First Amendment,
regardless of the citizenship or residency of the speaker. The First Amendment protects our
?profound national commitment to the principle that debate on public issues should be
uninhibited, robust, and wide-open.? New York Times v. Sullivan, 376 US. at 270.
Constitutional standards for defamation cases have been developed to safeguard the ?important
societal interest in vigorous debate over matters of public concern protected by the First
Amendment.? See Mann, 150 A.3d at 1241. Moreover, the First Amendment ?guarantees are
not for the benefit of the press so much as for the bene?t of all of us.? Time, Inc. v. Hill, 385
US. 374. 389 (1967). ?It is now well established that the Constitution protects the right to
receive information and ideas.? Kleinclienst v. Mandel, 408 US. 753, 762-63 (1972) (citations

and quotations omitted). As a result, the interest of US. citizens in receiving information that

 

3 It is ironic that Plaintiffs, who are non-resident aliens with Russian and/or Israeli
citizenship (Complaint 11 15), argue that non-resident aliens do not have rights that the First
Amendment requires a US. court to respect while petitioning a US. court for a redress of their
grievances and invoking a constitutional right to conduct discovery (Opp. at 25). See Stuart v.
Walker, 143 A.3d 761, 767 (DC. 2016) right of access to courts for redress of wrongs is
an aspect of the First Amendment right to petition the govemment.?) (quoting Borough of
Duryea v. Guarnieri, 564 US. 379, 387 (2011)), Douglas v. Kriegsfeld Corp, 849 A.2d 951,
994 (DC. 2004) (?The right of access to the courts is but one aspect of the broader right,
protected by the First Amendment, to petition the government for redress of grievances,? and
?[m]eaningful access to the courts is a fundamental right of citizenship in this country?)
(quotations omitted). Plaintiffs do not explain why non-resident aliens have the same rights as
US. citizens to bring defamation actions, but non-resident aliens do not have the same rights as
US. citizens to defend themselves.

the First Amendment protects does not depend on whether the speaker is a US. citizen or
resident.

It is in this context that the Court evaluates Plaintiffs? argument that the First Amendment
does not apply to Defendants? speech. It is well established that non-citizens ?enjoy certain
constitutional rights.? See United States v. Verdugo-Urquidez, 494 US. 259, 271 (1990) (citing
Plyler V. Doe, 457 US. 202, 211-212 (1982) (illegal aliens are protected by Equal Protection
Clause); KwongHai Chew V. Colding, 344 US. 590, 596 (1953) (resident alien is a ?person?
within the meaning of the Fifth Amendment); Bridges V. Wixon, 326 US. 135, 148 (1945)
(resident aliens haVe First Amendment rights); Russian Volunteer Fleet V. United States, 282
US. 481 (1931) (Just Compensation Clause of Fifth Amendment); Wong Wing V. United States,
163 US. 228, 238 (1896) (resident aliens entitled to Fifth and Sixth Amendment rights); ick
W0 V. Hopkins, 118 US. 356, 369 (1886) (Fourteenth Amendment protects resident aliens)).
Verdugo-Urquidez, 494 U. S. at 259, indicates that a non-citizen must have ?substantial
connections with the country? before he can ?receive constitutional protections.? See Johnson v.
Eisentrager, 339 US. 763, 770 (1950) (?The alien, to whom the United States has been
traditionally hospitable, has been accorded a generous and ascending scale of rights as he
increases his identity with our society?).

To paraphrase National Council of Resistance oflran v. Department of State, 251 F.3d
192, 202 (DC. Cir. 2001), the Court need not undertake to determine, as a general matter, how
?substantial? a non-resident alien? 8 connections with this country must be to merit the
protections of the First Amendment for speech in the United States. The Court need not de?ne
the precise line because Mr. Steele and Orbis and their speech haVe ample connections with the

United States that are clearly substantial enough to merit First Amendment protection.

10

According to Plaintiffs? own complaint, US. clients hired Mr. Steele and Orbis, and a
U. S. presidential candidate was the subject of the investigation that they were hired to conduct.
See Complaint 1T 5. Furthermore, Mr. Steele was in the United States when he briefed U.S.-based
media organizations about the results of his investigation, and Plaintiffs do not dispute that Mr.
Steele was lawfully present in the United States when he provided his briefings.4 These US.-
based media organizations reported on allegations in the Steele Dossier in the United States. See
id. 9, ll. Plaintiffs themselves allege that the Court has jurisdiction because ?Orbis and
Steele transacted business in the District of Columbia.? Complaint 11 20. Plaintiffs? summary of
their jurisdictional allegations is apt: ?In sum, Steele, acting for himself and Orbis, has engaged
in a persistent course of conduct, often with Fusion and Simpson, intended to have and which did
have effects in the District, by meeting with District based media and government employees to
bring his reports on ?Russia matters? to their attention.? Complaint 1T 20, see id. 1] 1 (Fusion is
based in Washington, and Glenn Simpson is Fusion?s principal).

Moreover, Plaintiffs recognize that Mr. Steele had substantial ongoing connections with
the United States even before US. clients hired him to gather information relating to the 2016
presidential election:

Steele, on behalf of himself and Orbis, has engaged in other ongoing business

relationships with entities located in the District. Steele and Orbis have been

retained repeatedly by the District-based FBI to assist in various investigations

between 2009 and 2016, and, as alleged above, Steele and Orbis have had an

ongoing professional relationship with Fusion for years. And as also noted above,

according to Winer, during his 2013-2016 employment at the State Department in

the District, Steele/Orbis provided over 100 intelligence reports, many of which

Winer shared with other State Department of?cials.

Complaint 11 21.

 

4 The Court does not suggest that aliens who are not legally present in the United States
automatically lack First Amendment rights. This case does not present that issue.

11

Plaintiffs argue that ?Defendants must show that they have, in some form, assumed the
obligations of the people,? Opp. at 5 (quotation and citation omitted), and Defendants assumed at
least one important ?obligation? of ?the people? by accepting the Court?s jurisdiction,
Defendants assumed the obligation to pay any judgment that might ultimately be entered against
them in a US. court. By assuming this obligation, Defendants also assumed the concomitant
right to raise the same defenses available to US. citizens and resident aliens who are sued for
defamation.

Plaintiffs rely on Ho?ncm v. Bailey, 996 F. Supp. 2d 477 (ED. La. 2014), which held
that a British national could not invoke the Louisiana Act because he did not have
First Amendment protection. See Opp. at 4-5. However, in Ho?nan, the defendant?s only
contact with the United States was that he sent the email that formed the basis of the defamation
claim to a Louisiana resident. See Hof?nan, 996 F. Supp. at 488-89. Here, Defendants and their
speech have far more substantial contacts with the United States.

Because Defendants have substantial and ongoing connections with the United States and
their speech in the United States concerns matters of public concern in the United States,
Defendants? speech is protected by the First Amendment. Therefore, even if the 
Act protects only speech also protected by the First Amendment their speech is covered by the
Act.

B. Prima facie showing

Defendants have made a prima facie showing that Plaintiffs? claims arise from ?an act in
furtherance of the right of advocacy on issues of public interest? within the meaning of 16-
5501(l). Section 16-55010) defines an ?act in furtherance of the right of advocacy on issues of

public interest? to include ?[a]ny written or oral statement made [i]n a place open to the

12

public or a public forum in connection with an issue of public interest; or [a]ny other
expression or expressive conduct that involves communicating views to members of the
public in connection with an issue of public interest.? Section 16-55016) defines an ?issue of
public interest? to include an issue related to ?community well-being? or ?a public figure.?

1. The right of advocacy

Plaintiffs themselves allege that Defendants ?intended, anticipated or foresaw? that
providing a copy of the Steele Dossier, including CIR 112, to third parties would likely result in
the Steele Dossier being published by the media, and that their direct and intentional
publication to third parties the Defendants published to a worldwide public false and
defamatory statements concerning Plaintiffs and Alfa.? See Comp. 1m 13, 43. The Court
disagrees with both of Plaintiffs? two arguments that Defendants? provision of the Steele Dossier
to the media with this intent and expectation was not ?an act in furtherance of the right of
advocacy.?

First, Plaintiffs contend that Defendants? statements to the media were outside the scope
of the Act because ?the Complaint [does not] allege or suggest that Defendants?
defamatory statements were made ?in a place open to the public or a public forum.?? Opp. at 7
(quoting id at 8 (?it is dubious that Defendants? private discussions with
members of the media and others constitute ?public? statements or expressions?). However,
16-5501(1) applies in the disjunctive either to statements a place open to the public or a
public forum in connection with an issue of public interest, 0r [a]ny other expression or
expressive conduct that involves communicating views to members of the public in
connection with an issue of public interest.? (Emphasis added.) Even if Mr. Steele did not meet

with the media in a public place or forum, he engaged in expression involving communicating

l3

information to members of the US. public through the media. As the Court explains above,
Plaintiffs challenge Mr. Steele?s provision of his dossier to the media precisely because he
expected and intended the media to communicate the information to the public in the United
States and around the world.

Second, Plaintiffs argue that ?the Complaint?s allegations in no way suggest that Steele
was hired to express ?views,? or that he did so,? and they suggest that the Act does
not protect the provision of ?raw intelligence? to the media. See Opp. at 7-8 (emphasis in
original). However, the public is interested in facts as well as opinions, and whether Defendants
were originally hired to express views or collect facts, they provided factual information to the
US. public through US. media relating to issues of public interest in the United States. The
First Amendment protects not only statements of pure opinion but also statements of fact and of
opinions that imply or rely on provably false facts, unless the plaintiff proves that the statements
are false and that the defendant?s fault in publishing the statements met the requisite standard.
See Mann, 150 A.3d at 1240-41; Opp. at 12. Protection under the Act is at least as
broad as protection under the First Amendment, so the Act applies to statements that consist of
?raw intelligence.?

2. Issues of public interest

Defendants have made, at a minimum, a prima facie case that the information in the
Steele Dossier generally, and the information in CIR 112 in particular, involves ?issues of public
interest.?

It is appropriate to interpret the term ?issues of public interest? in 16-5501(3) in light of
defamation cases defining whether the controversy in which the plaintiff is involved is public. In

these defamation cases, ?courts often de?ne the public controversy in expansive terms,? and ?a

14

court may ?nd that there are multiple potential controversies, and it is often true that ?a narrow

377

controversy may be a phase of another, broader one. Jankovic 12. International Crisis Group,
822 F.3d 576, 586 (DC. Cir. 2016) (quoting Waldbaum, 627 F.2d at 1297 n.27). Defendants
argue that CIR 112 involves two issues of public interest: (1) relationships between Russian
oligarchs and the Russian government and (2) Russian interference in the 2016 US. presidential
election. Reply at 10. The Court adds that relations between the United States and Russia more
generally (and not just related to alleged Russian interference with the 2016 US. presidential
election) is an issue of public interest in the United States. Plaintiffs contend that they are not
public figures with respect to these issues of public interest.

The Steele Dossier as a whole plainly concerns an ?issue of public interest? within the
meaning of 16-5501(3) because it relates to possible Russian interference with the 2016
presidential election. The Steele Dossier generated so much attention and interest in the United
States precisely because its contents relate to active public debates here. See Waldbaum, 627
F.2d at 1296-97 (courts ?may not question the legitimacy of the public?s concern? to avoid
becoming ?censors of what information is relevant to self-government?) (quoting Supreme Court
cases). Plaintiffs themselves ?readily agree that the 2016 US. Presidential election was of public
interest.? Opp. at 9. A key part of Plaintiffs? case is that CIR 112 implicitly alleged that
Plaintiffs aided ?the Kremlin?s interference in the 2016 US. Presidential election,? Opp. at 1,
and Plaintiffs cannot contend both that Defendants in CIR 112 accused them of cooperation with
Russian interference in the election and that these statements did not involve an issue of public
interest in the United States. Plaintiffs own contentions therefore establish at least a prima facie

case that Defendants? allegedly defamatory statements involve a matter of public interest.

15

Moreover, CIR 112 expressly discusses Russian foreign policy toward the United States
and President Putin?s advisors on Russia-US. policy, and these too are issues of public interest
within the meaning of Contrary to their argument that Defendants defamed them
by accusing them of complicity in Russian interference with the 2016 US. presidential election,
Plaintiffs argue that CIR 112 does not relate to an issue of public interest because it does not
mention any presidential candidate by name or explicitly address the 2016 presidential election.
See Opp. at 8-9, 20-21. However, involvement of Russian international businessmen in Russian
foreign policy, speci?cally including Russian foreign policy toward the United States, involves
an issue of public interest in the United States, regardless of whether it relates to a particular
election.

For these reasons, Defendants have made a prima facie case that the expressive conduct
that forms the basis of Plaintiffs? defamation claim involves an ?issue of public interest,? even if
they do not also make a prima facie case that Plaintiffs are public figures. Speech may involve
an issue of public interest within the meaning of the Act even if the speech does not involve a
public ?gure, so Defendants are entitled to the protection of the Act on this basis
alone.

In fact, Defendants have made a prima facie case that the Steele Dossier in general, and
CIR 112 in particular, involve public ?gures. It would appear to be beyond dispute that
President Putin, who is discussed in CIR 112, is a general-purpose public figure. See Doe N0. 1,
91 A.3d at 1041 (?General purpose public figures because of their position of such pervasive
power and in?uence are deemed public ?gures for all purposes?).

Furthermore, Plaintiffs are public figures for at least a limited purpose related to the

information in CIR 112. In some cases ?[t]he task of determining whether a defamation plaintiff

16

is a limited-purpose public ?gure is a dif?cult one, requiring a highly fact-intensive inquiry that
some have described as trying to nail a jelly?sh to the wall.? Id. at 1041-42. The task is easier
in this case. OAO Alfa Bank v. Center for Public Integrity, 387 F. Supp. 2d 20 (D.D.C. 2005),
was a defamation case brought by Mr. Fridman, Mr. Aven, and their companies, and the court
held as a matter of law that the evidence in that case eliminated any genuine dispute that they
?are limited public ?gures?: the plaintiffs made choices that placed them ?squarely in the public
light,? they ?have been the subject of widespread news coverage,? they ?enjoy access to the
channels of effective communication that enable them to respond to any defamatory statements
and in?uence the course of public debate,? and ?Aven and Fridman have used their positions to
in?uence the events of their country and the world, and have assumed a prominent role in the
civic life of Russia, associating closely and openly with the Russian business elite and politicians
at the highest positions of government.? See id. at 44-46 (quotation omitted); see id. at 25-28.
?Simply put, Aven and Fridman are players on the world stage; hence, they are limited public
?gures not only in Russia, but in the United States as well.? See id. at 47. The same is true of
Mr. Khan: like Mr. Fridman and Mr. Aven, Mr. Khan is a bene?cial owner of Alfa, Complaint
1T 15; and he has had similar prominence and media coverage. See Motion at 8 (an Internet
search yielded 5,311 articles mentioning Mr. Khan, more than those mentioning Mr.
Aven).

These ?ndings in OAO Alfa Bank are valid today. See Motion at 8, 11-13 (including
recent articles in examples of extensive media coverage of all three Plaintiffs going back to the
19905). Plaintiffs dismiss them as ??ndings of another court in another decade in connection
with unrelated defamatory statements.? See Opp. at 21 n.26. 0A0 Alfa Bank is not a relic from

a bygone era, and Plaintiffs do not contend that they have become recluses in the last decade.

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Nothing suggests in the intervening decade a signi?cant decrease in the fortunes of Alfa Group
or the role of Russian oligarchs.

Plaintiffs therefore are limited-purpose public ?gures for the broad controversy relating
to Russian oligarchs? involvement with the Russian government and its activities and relations
around the world, including the United States. The US. public today continues to have a strong
interest in Russia?s relations with the United States and in the political and commercial
relationships between Russian oligarchs and the Russian government. Deripaska v. AP, 282 F.
Supp. 3d 133, 142 (D.D.C. 2017) (?there can be no doubt a public controversy exists relating to
Russian oligarchs acting on behalf of the Russian Plaintiffs have assumed
special prominence in these controversies, and the statements in CIR 112 are germane to these
controversies. See OAO Alfa Bank, 387 F. Supp. 2d at 43-44.

For all of these reasons, Defendants have made a prima facie case that their speech
involved issues of public interest and that Plaintiffs are limited-purpose public ?gures.

C. Likelihood of success on the merits

Because Defendants have made this prima facie case, the burden shifts to Plaintiffs to
offer evidence that would permit a jury properly instructed on the applicable legal and
constitutional standards to reasonably ?nd that Defendants are liable for defamation. See Mann,
150 A.3d at 1232. ?The precise question the court must ask, therefore, is whether a jury properly
instructed on the law, including any applicable heightened fault and proof requirements, could
reasonably ?nd for the claimant on the evidence presented.? Id. at 1236. Because Defendants?
speech concerned a matter of public concern and Plaintiffs are limited-purpose public ?gures,
Plaintiffs would have the burden at trial to prove by clear and convincing evidence that

(CC

Defendants acted with actual malice that is, that the statement was made with knowledge

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that it was false or with reckless disregard of whether it was false or not.? Thompson v.
134 A.3d 305, 311 (DC. 2016) (quoting New York Times Co., 376 US. at 279-80).
Plaintiffs have not carried their burden because they do not offer evidence that a reasonable jury
could find to be clear and convincing proof that Defendants knew that facts stated in, or
reasonably implied by, CIR 112 were false or that they published CIR 112 with reckless
disregard of the falsity of these stated or implied facts.

Plaintiffs contend that they have shown actual malice because ?a careful reading of the
text of CIR 112 reveals that it contains no support for the implication in CIR 112?s headline that
Plaintiffs ?cooperated? in Russian interference in the US. Presidential election of 2016. In doing
so, Defendants essentially admit that they have no facts to support that defamatory statement.?
See Opp. at 22. If it is plain from a reading of CIR 112 that Defendants do not have any
evidence that Plaintiffs cooperated in Russian interference with this election beyond information
that Plaintiffs have had a long and close relationship with the Russian government and gave
advice to President Putin about Russia?s relations with the United States, it would be plain that
Defendants were engaging in speculation to the extent CIR 112 suggests that the Plaintiffs
cooperated in Russian interference with the U. S. presidential election. However, under the First
Amendment, a statement is not actionable ?if it is plain that a speaker is expressing a subjective
view, an interpretation, a theory, conjecture, or surmise.? See Mann, 150 A.3d at 1241
(quotation omitted); Levin v. McPhee, 119 F.3d 189, 197 (2d Cir. 1997) (?When the defendant?s
statements, read in context, are readily understood as conjecture, hypothesis, or speculation, this
signals the reader that what is said is opinion, and not fact?).

A reader could reasonably infer that inclusion of CIR 112 in a collection of reports

relating to Russian interference in the 2016 US. presidential election was not gratuitous, and

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CIR 112 is capable of bearing the meaning that that the nature of the overall relationship between
Plaintiffs and the Russian government creates a reasonable possibility that they were involved, as
advisors or participants, in any Russian interference with the US. election. See Zimmerman, 246
F. Supp. 3d at 273.5 However, Plaintiffs do not offer any evidence that Defendants knew, or
recklessly disregarded substantial information, that no conceivable possibility existed that
Plaintiffs were involved in any such Russian interference. The failure to include supporting facts
does not support a reasonable inference by clear and convincing evidence that Defendants knew
the statements were false or acted in reckless disregard to their falsity: lacking supporting
information is different from having opposing information; and although lack of evidence may
establish negligence, negligence ?is constitutionally insufficient to show the recklessness that is
required for a finding of actual malice.? See New York Times Ca, 376 US. at 288.

Plaintiffs argue that only a reckless person would publish CIR 112 to third parties. See
Opp. at 22. ?But it is not enough to show that defendant should have known better; instead, the
plaintiff must offer evidence that the defendant in fact harbored subjective doubt.? Jankovic, 822
F.3d at 589-90. ?The plaintiff can make this showing, for example, by offering evidence that it
was highly probable that the story was (1) fabricated; (2) so inherently improbable that only a
reckless person would have put it in circulation, or (3) based wholly on an unveri?ed anonymous
telephone call or some other source that defendant had obvious reason to doubt.? Id. Plaintiffs
do not offer evidence that Mr. Steele in fact had subjective doubts or recklessly disregarded
information about its falsity, or that Defendants had obvious reason to doubt the source described
in CIR 112 as a ?trusted compatriot? of a ?top level Russian government official.? See 

Bank, 387 F. Supp. 2d at 1253-54 (a publisher does not have a duty to corroborate even when a

 

5 The Court need not and does not decide whether this meaning is defamatory.

2O

single source of potentially libelous material is a person of questionable credibility); St. Amam?,
390 US. at 733 (?Failure to investigate does not in itself establish bad faith?); see Gerrz v.
Robert Welch, 418 US. 323, 332 (1974) (?mere proof of failure to investigate, without more,
cannot establish reckless disregard for the truth?). Moreover, the information in the Steele
Dossier about corrupt payments to Russian public officials was consistent with other information
in the public domain: ?Although Alfa Bank has developed a reputation in the international
community as one of the most respected Russian financial institutions, Aven and Fridman have
been dogged by allegations of corruption and illegal conduct.? OAO Alfa Bank, 387 F. Supp. 2d
at 28 (footnote omitted). Mr. Fridman himself acknowledged that the ?rules of business? in
Russia ?are quite different to western standards? and to ?be completely clean and transparent is
not realistic.? Id. at 29.

Plaintiffs argue that Mr. Steele doubted the truthfulness of some of the Steele Dossier
based on a publication stating that Mr. Steele ?estimated that between 10 and 30 percent of his
?raw intelligence? would ultimately prove inaccurate.? Opp. at 23. However, even putting aside
whether this publication falls within any exception to the hearsay rule, a belief that most, if not
almost all, of the information would ultimately prove to be accurate is hard to square with actual
malice. In any event, ?defamation plaintiffs cannot show actual malice in the abstract; they must
demonstrate actual malice in conjunction with a false defamatory statement.? avoulareas v.
Piro, 817 F.2d 762, 794 (DC. Cir. 1987) (en banc) (emphasis in original). Plaintiffs do not
allege that Mr. Steele subjectively believed that the 10-3 0% of the Steele Dossier that would
ultimately turn out to be inaccurate included CIR 112 or that Mr. Steele knew any fact stated or

implied in CIR 112 was false or acted with reckless disregard to its falsity.

21

Plaintiffs argue that Defendants have not demonstrated that the statements are true. See
Opp. at 22. However, the burden is on Plaintiffs to show that the statements were false, not on
Defendants to demonstrate their truth. See New York Times 376 US. at 271; Beeion v.
District of Columbia, 779 A.2d 918, 923 (DC. 2001) (the plaintiff in a defamation action must
show ?that the defendant made a false and defamatory statement concerning the plaintiff 
(quotations and citations omitted).

Because Plaintiffs have not offered evidence supporting a clear and convincing inference
that Defendants made any defamatory statement in CIR 112 with knowledge that it was false or
with reckless disregard of its falsity, they have not offered evidence that their claims are likely to
succeed on the merits.

D. Targeted discovery

Section provides, ?When it appears likely that targeted discovery will
enable the plaintiff to defeat the motion and that the discovery will not be unduly burdensome,
the court may order that specified discovery be conducted.? Plaintiffs have not shown that it is
likely that any discovery that is targeted and not unduly burdensome will enable them to defeat
the special motion to dismiss. More speci?cally, Plaintiffs do not show that any such discovery
is likely to uncover clear and convincing evidence that, for example, Mr. Steele fabricated any
information provided in CIR 112 or had solid intelligence that his source(s) fabricated it.

Plaintiffs suggest that they should be allowed to conduct discovery because Defendants
have exclusive control over evidence about their subjective state of mind. See Opp. at 24.
However, Plaintiffs have not shown a likelihood that Defendants have information that will
establish actual malice by clear and convincing evidence. If targeted discovery were justified

solely by the fact that a defendant in a defamation case is the best, if not only, source of

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information about his subjective knowledge of the truth or falsity of the challenged statement,
discovery would be justi?ed in every Act case.

Citing Herbert v. Lando, 441 US. 453 (1979), Plaintiffs contend that ?defamation
plaintiffs burdened with proof of actual malice are entitled to discovery of a media defendant?s
editorial process as a constitutional matter.? See Opp. at 24-25 (emphasis in original).
However, the Constitution does not entitle plaintiffs in defamation cases to conduct fishing
expeditions. The provision of the Act permitting targeted discovery only if the
plaintiff shows a likelihood that discovery will produce clear and convincing evidence of actual
malice is consistent with plaintiffs? constitutional rights, including their right to trial by jury. Cf
Mann, 150 A.3d at 1232-33. It is also consistent with more general direction from the Supreme
Court ?to expeditiously weed out unmeritorious defamation suits? in order to ?preserve First
Amendment freedoms.? See Kan] v. Bureau of National A?airs, Inc, 856 F.3d 106, 108 (DC.
Cir. 2017). Herbert holds only that in a case where discovery is warranted, the First Amendment
does not allow a media entity to claim absolute privilege over its editorial processes. See
Herbert, 441 US. at 158, 175. Herbert does not hold that the Constitution gives an absolute
right to discovery by any plaintiff who has the burden to show actual malice by clear and
convincing evidence and who can only speculate that discovery will enable him to prove his
case.

IV. CONCLUSION

Plaintiffs are correct that the Act was ?not enacted to immunize
surreptitious for-hire intelligence operatives who defame private persons.? Opp. at 9. However,
the Act was enacted to protect the right of advocacy on issues of public interest,

and it does not exempt advocates if they can be described as ?surreptitious for-hire intelligence

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operatives.? Nor does the Act immunize any defamatory statement whether the
information was obtained surreptitiously or openly, or for hire or for other reasons. The Act
allows defamation suits involving statements about issues of public interest to proceed, provided
that the subjects of the alleged defamatory statement offers evidence that they are likely to

succeed. Plaintiffs have failed to provide such evidence. Accordingly, the Court orders that:

l. Defendants? special motion to dismiss is granted.
2. Defendants? Rule 12(b)(6) motion to dismiss is denied as moot.
3. This case is dismissed with prejudice.

 

 

Anthony C. Epstein
Judge

Date: August 20, 2018
Copies to:

Kim Hoyt Sperduto
Counsel for Plaintiffs

Kelley C. Barnaby
Counsel for Defendants

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