Case 1:18-cv-08787-JPO Document 62 Filed 12/18/19 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
NATIONAL JEWISH DEMOCRATIC
COUNCIL et al.,
Plaintiffs,

18-CV-8787 (JPO)
ORDER

-vSHELDON G. ADELSON,
Defendant.

J. PAUL OETKEN, District Judge:
Defendant Sheldon G. Adelson moves this Court to reconsider the Opinion and Order
entered on September 30, 2019 (Dkt. No. 40), in which the Court denied Adelson’s special
motion to dismiss under Nevada law. The motion for reconsideration is denied.
Reconsideration is an “extraordinary remedy to be employed sparingly in the interests of
finality and conservation of scarce judicial resources.” Drapkin v. Mafco Consol. Grp., Inc., 818
F. Supp. 2d 678, 695 (S.D.N.Y. 2011). It will “generally be denied unless the moving party can
point to controlling decisions or data that the court overlooked — matters, in other words, that
might reasonably be expected to alter the conclusion reached by the court.” Shrader v. CSX
Transp., Inc., 70 F.3d 255, 257 (2d Cir.1995).
Adelson first attacks the Opinion and Order for “overlooking” the Court’s prior decision
in Adelson v. Harris, 973 F. Supp. 2d 467 (S.D.N.Y. 2013). In Adelson v. Harris, the Court
dismissed a defamation suit brought by Adelson under Nevada’s anti-SLAPP statute. See id. at
504. In doing so, the Court first concluded that the allegedly defamatory speech was a protected
“good faith” communication — i.e., a statement made truthfully or without knowledge of
falsity — because Adelson “failed to plead that Defendants acted with knowledge of falsehood.”
Id. at 501–02 (emphasis added). Given Adelson’s failure to plead knowledge of falsity, the

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Court determined there was no “genuine issue of material fact on the issue of good faith” and
concluded the communications were protected good-faith conduct “as a matter of law.” Id. at
501.
By contrast, the Court in this case denied anti-SLAPP dismissal because Adelson failed
to demonstrate that his defamation lawsuit was a protected good-faith communication. Although
Plaintiffs in this case also failed to plead that the underlying conduct — Adelson’s defamation
lawsuit — was brought with knowledge of falsity, the Court nonetheless concluded that Adelson,
under Nevada law, bore the initial burden of production on the issue. (Dkt. No. 40 at 21.)
Because Adelson produced no “evidence whatsoever . . . that the allegations in his initial lawsuit
were truthful or brought without knowledge of their falsehood,” the Court denied protection
under Nevada’s anti-SLAPP statute. (Id.)
Adelson descries an inconsistency. But these holdings are easily reconciled. At the time
of Adelson v. Harris, the Nevada statute provided only that the special motion to dismiss was to
be “[t]reat[ed] . . . as a motion for summary judgment.” Nev. Rev. Stat. § 41.660(3)(a) (2013).
Accordingly, the Court in Adelson v. Harris properly applied the summary-judgment standard to
conclude that Adelson “fail[ed] to demonstrate a genuine issue of material fact on the issue of
good faith.” 973 F. Supp. 2d at 503. In 2013, however, the Nevada legislature “removed the
language likening an anti-SLAPP motion to dismiss to a motion for summary judgment and set
forth a specific burden-shifting framework.” Coker v. Sassone, 432 P.3d 746, 748 (Nev. 2019). 1
Under that framework, it is now the movant’s initial burden to “establish[], by a preponderance
of the evidence, that the claim is based upon a good faith communication.” Nev. Rev. Stat.

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The burden-shifting anti-SLAPP framework applies in “actions where the
proceedings” — like this one — “were initiated [after] the [2013] legislative change.” Coker v.
Sassone, 432 P.3d 746, 749 n.2 (Nev. 2019).
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§ 41.660(3)(a) (2019). In this case, Adelson submitted no evidence whatsoever on the issue.
Accordingly, Adelson failed to meet his burden, as required by the post-2013 statute, and his
anti-SLAPP motion was properly denied. 2
Adelson also attacks the Opinion and Order for declining to apply the Noerr-Pennington
doctrine and reading an “objective baselessness” requirement into the anti-SLAPP damages
provision. The Noerr-Pennington doctrine, Adelson argues, “certainly applies to . . . the Nevada
anti-SLAPP statute . . . [as] [t]he Court . . . held in Adelson [v. Harris].” (Dkt. No. 49 at 8.) It is
indeed true that Adelson v. Harris relied in part on the Noerr-Pennington line of cases to
interpret an ambiguous provision of Nevada’s anti-SLAPP law. See 973 F. Supp. 2d at 498–99.
The interpretive issue in this case, however, is poles apart. The Supreme Court has expressly
cautioned that Noerr-Pennington’s “objective baselessness” requirement applies only if the
standard “finds . . . roots in the text of the [statute].” Octane Fitness, LLC v. ICON Health &
Fitness, Inc., 572 U.S. 545, 556 (2014). The “objective baselessness” standard has no
application when the “text is patently clear.” Id. at 553. And here, the text is patently clear: it
imposes “one and only one constraint on district courts’ discretion” to award anti-SLAPP

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Adelson now seeks to meet his burden by submitting a declaration from L. Lin Wood,
counsel of record for Adelson in the initial defamation suit, that attests the suit was brought
without knowledge of falsehood. (Dkt. No. 49 at 6–7.) But a movant seeking reconsideration
“may not ‘advance new facts, issues or arguments not previously presented to the Court.’”
Drapkin v. Mafco Consol. Grp, Inc., 818 F. Supp. 2d 678, 696 (S.D.N.Y. 2011) (quoting
Christoforou v. Cadman Plaza N., Inc., No. 04-CV-8403, 2009 WL 723003, at *7 (S.D.N.Y.
Mar. 19, 2009)).
Further, as Plaintiffs correctly note, even if Adelson were deemed to have met his initial
burden, he would still be disentitled to dismissal. The burden would then shift to Plaintiffs to
demonstrate “a probability of prevailing on the claim.” Nev. Rev. Stat. § 41.660(3)(b). And
because the sole precondition to prevailing on the claim for compensatory damages is the district
court’s grant of a special motion to dismiss, Plaintiffs would be able to do so.
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damages. Id. Thus, it would make “little sense” to import the “objective baselessness” standard
into the anti-SLAPP statute. Id. at 556.
Adelson’s motion for reconsideration is DENIED. The Clerk of Court is directed to
terminate the motion at Docket Number 48.
SO ORDERED.
Dated: December 18, 2019
New York, New York
____________________________________
J. PAUL OETKEN
United States District Judge

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