Abbas v. Foreign Policy Grp., LLC

Decision Date27 September 2013
Docket NumberCiv. Action No. 12–1565 (EGS)
Citation975 F.Supp.2d 1
CourtU.S. District Court — District of Columbia
PartiesYasser Abbas, Plaintiff, v. Foreign Policy Group, LLC, Jonathan Schanzer, Defendant.

OPINION TEXT STARTS HERE

Louis G. Adolfsen, Michael F. Panayotou, S. Dwight Stephens, Melito & Adolfsen P.C., Rania Shoukier, Middle East U.S. Legal Solutions, LLC, New York, NY, for Plaintiff.

Adam R. Tarosky, Kevin Taylor Baine, Williams & Connolly, LLP, Nathan E. Siegel, Seth D. Berlin, Shaina D. Jones, Levine Sullivan Koch & Schulz, LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION

EMMET G. SULLIVAN, United States District Judge

Plaintiff Yasser Abbas brings this defamation action against Foreign Policy Group and Jonathan Schanzer, the author of an article that appeared in Foreign Policy Magazine in June 2012. Pending before the Court are defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and special motion to dismiss pursuant to the District of Columbia Anti–Strategic Lawsuits Against Public Participation Act of 2010 (the “Anti–SLAPP Act), D.C.Code § 16–5502(a) (2012). Upon consideration of the motions, the responses and replies thereto, the amicus brief filed by the District of Columbia, the applicable law, and the entire record, the Court GRANTS defendants' special motion to dismiss and DENIES defendants' motion to dismiss pursuant to rule 12(b)(6) as moot.1

I. BACKGROUNDA. Yasser Abbas

Yasser Abbas (Plaintiff or “Mr. Abbas”) is the son of Mahmoud Abbas (M.Abbas), the President of the Palestinian Authority (the “PA”). Compl. ¶ 9. He owns and operates many businesses throughout the Middle East: he is the chairman of Falcon Holding Group, which owns Falcon Global Telecommunications Services Company, Falcon General Investment Company, and Falcon Electrical Mechanical Company, an engineering company with offices in Gaza, Jordan, Qatar, the United Arab Emirates, and the West Bank that has done work for USAID in the past, Compl. ¶¶ 21, 28; he is the owner of Falcon Tobacco, Compl. ¶ 16; he is the chairman of the publicly traded Al–Mashreq Insurance Company, Compl. ¶ 31; and he is the managing director of the First Option Project Construction Management Company, which has offices in Amman, Tunis, Cairo, Montenegro, and Ramallah and has been awarded USAID funds. Compl. ¶ 32.

Mr. Abbas also serves as a political emissary for his father's regime, and often travels to other countries and international meetings in this capacity. Anti–SLAPP Mot. at 9–10 (citing Anti–SLAPP Mot., Jones Decl. Ex. 15, 16, 17, 18). He has previously acknowledged that his political involvement in the Palestinian Authority and his business success have engendered controversy. See, e.g. Anti–SLAPP Mot., Jones Decl. Ex. 6, Excerpts from an interview with Yasser Abbas in Ramallah (Yasser Abbas Interview”), Part 3. Over the last few years, many questions have been raised about whether his business success and political ties are linked, though he has systematically denied any such allegations. Anti–SLAPP Mot. at 11–12; see, e.g., Jones Decl., Ex. 24 (Ike Seamans, What do Palestinians Do With Humanitarian Aid Money?, The Miami Herald, Jan. 25, 2003, at 7B (“Israeli military intelligence charges that Yasser Arafat and his cronies have $20 billion stashed in Swiss bank accounts and invested in foreign real estate. With PA financial help, Yasser Abbas, the prime minister's son, joined the gravy train. He has gained control of the electronics industry, even though he's a Canadian citizen who lives in Ramallah only a few months a year.”)); see also Jones Decl., Ex. 21, 22, 25, 26.

As public scrutiny over his business and political activity has increased, Mr. Abbas has used the threat of defamation litigation to counter bad press. Anti–SLAPP Mot. at 14–15. Between 2008 and 2010, Mr. Abbas and his family have filed defamation lawsuits or threatened to sue for libel on three separate occasions against an Israeli television channel, Reuters, and Al–Jazeera. Id. Mr. Abbas has also threatened to sue Richard Falk, the United Nations Special Rapporteur for the Palestinian Territories. Id.

B. Foreign Policy Magazine and Jonathan Schanzer

Foreign Policy is an online and print publication is a “forum for ‘international news and opinions' covering topics on global politics and economics.” Anti–SLAPP Mot. at 15; Compl. ¶ 5. The magazine contains an “Arguments” section, which is described as: “Polemical, controversial, and powerful, FP arguments provide timely insight on stories making headlines around the world.” Anti–SLAPP Mot. at 16. Foreign Policy also publishes FP Arabic on a bimonthly basis in partnership with the Gulf Strategic Studies Center in Qatar, which contains translated pieces from Foreign Policy and is distributed in the Middle East. Compl. ¶ 7.

Jonathan Schanzer is the Vice President for Research at the Foundation for Defense of Democracies (“FDD”), a non-partisan group that focuses on national security and foreign policy. Anti–SLAPP Mot., Declaration of Jonathan Schanzer (“Schanzer Decl.”) at ¶ 1. Prior to joining FDD, Mr. Schanzer worked as a terrorism finance analyst at the U.S. Department of the Treasury and at several other U.S. think tanks. He has also published two books about Hamas and the Middle East and regularly publishes articles in American and international publications, including Foreign Policy. Schanzer Decl. ¶¶ 2–5. Mr. Schanzer has also testified before Congress twice regarding the issue of corruption in the PA.2See Compl. ¶¶ 56–77.C. The June 5, 2012 Commentary in Foreign Policy Magazine

On June 5, 2012, an article (the “Commentary”) written by Mr. Schanzer was published in Foreign Policy magazine. Compl. ¶ 10. The article is entitled “The Brothers Abbas: Are the sons of the Palestinian President growing rich off their father's system?” and appeared in the “Arguments” section of the magazine. It can be accessed by clicking on the “Arguments” link on the FP website. Id.; Defs.' MTD, Ex. A. In the introduction of the article, Mr. Schanzer writes:

In the wake of the Arab Spring, U.S. leaders have promised to reverse the United States' long reliance on autocratic, unrepresentative leaders who enrich themselves at the expense of their citizens. There's only one problem: Just as top American officials have been making these lofty promises, new details are emerging of how close family members of Palestinian leader Mahmoud Abbas, a major U.S. partner in the Middle East, have grown wealthy. Have they enriched themselves at the expense of regular Palestinians—and even U.S. taxpayers?

Defs.' MTD, Ex. A at 2. Mr. Schanzer then discusses Mr. Abbas, his family, and their business and political interests.3

Mr. Schanzer does not paint Mr. Abbas or his family in a particularly flattering light. He writes of allegations of corruption in the PA and the “conspicuous wealth” of Mr. Abbas and his brother, which Mr. Schanzer claims has “become a source of quiet controversy in Palestinian society since at least 2009.” Defs.' MTD, Ex. A. He also details allegations made by some in the region against Mr. Abbas and his family, including an allegation by Mohammad Rachid, a former economic advisor to the late PA leader Yasir Arafat who is under investigation for corruption, that President Abbas has “socked away $100 million in ill-gotten gains.” Defs.' MTD, Ex. A at 2; Compl. ¶ 14. He also discusses conversations he had with Palestinians during a research trip to Ramallah in 2011, who told him that “the Abbas family dynasty is common knowledge” in the region, but that it was rarely discussed “thanks to growing fear of retribution by PA security officers, who have apprehended journalists and citizens for openly challenging President Abbas's authority. Defs.' MTD, Ex. A at 3; Compl. ¶ 37. The online version of the article contains approximately 31 highlighted words or phrases that are hyperlinks to the underlying source material for statements made in the article, which include articles from other publicationsand company websites.4 Anti–SLAPP Mot. at 17.

Within a week of the publication of Mr. Schanzer's Commentary in Foreign Policy, Mr. Abbas threatened to sue the magazine in an interview with a Palestinian news agency. Anti-SLAPP Mot. at 17. On July 23, 2012, Mr. Abbas's London-based counsel sent Foreign Policy a letter asking it to remove the Commentary from its website and retract those portions of the Commentary that he alleged were defamatory or false. Id. Foreign Policy responded in a letter dated August 6, 2012, explaining that it did not read Mr. Abbas's complaints as alleging anything defamatory or materially false in the Commentary, and offering to clarify facts in the article if Mr. Abbas provided the basis to do so. Foreign Policy also offered Mr. Abbas the opportunity to respond in print. Id. Through his counsel, Mr. Abbas declined and filed this action on September 20, 2012. Id. at 18. On November 5, 2012 defendants filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) and a special motion to dismiss pursuant to the District's Anti–SLAPP Act. The District of Columbia moved for leave to file an amicus curiae brief, which the Court granted. The District filed an amicus brief on December 22, 2012 arguing that the Anti–SLAPP Act is applicable in a federal court sitting in diversity. These motions are now ripe for determination by the Court.

II. DiscussionA. The Anti–SLAPP Act

A SLAPP, or strategic lawsuit against public participation, is a civil action that arises out of a defendant's communications to government bodies or the public on an issue of public concern. See Brief of Amicus Curiae District of Columbia (“D.C. Amicus Brief”) at 1. The District's Committee on Public Safety and the Judiciary has noted that SLAPPs “are often without merit, but achieve their filer's intention of punishing or preventing opposing points of view, resulting in a chilling effect on the exercise of constitutionally protected...

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