Berisha v. Lawson

• Decision Date: 21 December 2018
• Docket Number: Case No. 17-22144-Civ-COOKE/LOUIS
• Parties: Shkelzen BERISHA, Plaintiff, v. Guy LAWSON, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

378 F.Supp.3d 1145

Shkelzen BERISHA, Plaintiff,

v.Guy LAWSON, et al., Defendants.

Case No. 17-22144-Civ-COOKE/LOUIS

United States District Court, S.D. Florida.

Signed December 21, 2018

Jason M. Zoladz, Pro Hac Vice, Law Offices of Jason M. Zoladz, Santa Monica, CA, Jeffrey W. Gutchess, AXS Law Group, Miami Beach, FL, Brandon Perry Rose, AXS Law Group, PLLC, Wynwood, FL, Daniel Edward Tropin, Kopelowitz Ostrow Ferguson Weiselberg Gilbert, Fort Lauderdale, FL, for Plaintiff.

Elizabeth A. McNamara, Pro Hac Vice, John M. Browning, Pro Hac Vice, JoAnna E. Summerscales, Pro Hac Vice, Taaj M. Reaves, Pro Hac Vice, Davis, Wright, Tremaine, LLP, New York, NY, Michael Constantine Marsh, Ryan Roman, Akerman LLP, Miami, FL, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

MARCIA G. COOKE, United States District Judge

THIS MATTER is before me on the Motion for Summary Judgment (ECF No. 138 ) filed by Defendants Guy Lawson, Alexander Podrizki, David Packouz, Simon & Schuster, Inc. ("S & S") and Recorded Books, Inc. Defendants' motion is fully briefed and ripe for review. For the reasons set forth herein, the motion is granted.

I. BACKGROUND

Plaintiff Shkelzen Berisha is the son of Sali Berisha, the former Prime Minister (and before that the President) of Albania. Defs.' Stmt. of Facts , ECF No. 139 ("DSOF "), at ¶ 3. In this defamation action, Plaintiff challenges statements made about him by Defendant Lawson, principally in Lawson's book entitled "Arms & The Dudes: How Three Stoners from Miami Beach Became the Most Unlikely Gunrunners in History," published by Defendant S & S in June 2015. Id. at ¶ 1. The book tells the "unlikely" story of Efraim Diveroli,¹ Defendant Packouz and Defendant Podrizki, Florida residents and childhood friends who became international arms dealers.² Id. at ¶ 2. The challenged statements are all to the effect that Plaintiff was involved in corrupt arms dealing, and that he was affiliated with the Albanian mafia. Id. at ¶ 3.

A. The Albanian Deal and Its Aftermath

In 2005, Defendant Packouz began working for AEY, Inc., a company run by his childhood friend Diveroli. DSOF at ¶ 4. AEY made its money by bidding on and satisfying arms procurement contracts posted online by the United States military. Id. In 2006, AEY won a contract to provide equipment to the Afghan military, a deal worth approximately $ 300 million. Id. at ¶¶ 5–6. The largest component of the deal was the delivery of 100 million rounds of AK-47 ammunition to Afghanistan. Id. at ¶ 7.

Using a middleman, AEY found a trove of the required ammunition in Albania, at what appeared to be a bargain price. Id. at ¶ 8. AEY's plan was for its middleman to use a shell company to buy the ammunition from Albania's Military Export Import Company ("MEICO"), a state-owned company tasked with disposing of the immense stockpiles of weapons left over from the Cold War. Id. at ¶¶ 9, 12. The middleman would then sell the ammunition to AEY. Id. at ¶ 9. Realizing that AEY needed someone "on the ground" in Albania, Packouz enlisted another childhood friend, Defendant Podrizki. Id. at ¶ 10. Packouz chose Podrizki because of the latter's familiarity with firearms and, evidently, with illicit trafficking. Id. ; Pl.'s Stmt. of Facts , ECF No. 154 ("PSOF "), at ¶ 10.

Podrizki traveled to Albania and met Ylli Pinari, the head of MEICO. DSOF at ¶ 11. Pinari showed the supply of Cold War-era ammunition to Podrizki, who determined that it was of good quality despite its age. Id. at ¶ 12. However, Podrizki noticed that some of the ammunition's packaging bore Chinese markings, a potential deal-breaker given that there was an embargo barring American companies from selling Chinese-made ammunition. Id. at ¶ 13. Podrizki told Packouz about the markings, but AEY decided to try to conceal the ammunition's Chinese origin and ship it in contravention of the embargo. Id.

To that end, Podrizki engaged an Albanian businessman, Kosta Trebicka, to remove the ammunition from its original packaging and place it into nondescript plastic bags and cardboard boxes. Id. at ¶ 14. Once on the job, Trebicka discovered that AEY's middleman was selling the ammunition to AEY at nearly double the price he was paying to MEICO. Id. at ¶ 15. Packouz speculated that the price differential was being funneled into "kickbacks" for Albanian officials, perhaps including Pinari. Id. at ¶ 16.

In May 2007, Diveroli learned about the situation and flew to Albania to negotiate directly with MEICO. Id. at ¶ 17. Diveroli and Podrizki met with Pinari in Tirana, the Albanian capital. Id. at ¶ 18. They also met³ with Pinari's business associate, Mihail Delijorgji, and another individual, about the same age as Podrizki, who remained silent and was not introduced. Id. at ¶¶ 19–22. Diveroli was informed that AEY could have a price reduction on the ammunition if the contract for the repackaging was taken away from Trebicka and given to a company controlled by Delijorgji. Id. at ¶ 20. Later, Diveroli and Trebicka told Podrizki that the silent, unidentified man at the meeting was the son of the Albanian Prime Minister. Id. at ¶ 23.

Per the new arrangement reached at the meeting, Delijorgji's company was given the repackaging deal. Id. at ¶ 24. Trebicka, having been cut out, started communicating with journalists, including at the New York Times , in an effort to expose those involved in the AEY deal. Id. at ¶¶ 24–25. In an effort to collect incriminating evidence, Trebicka recorded one of his telephone calls with Diveroli. Id. at ¶ 26. During that recorded call, Diveroli told Trebicka that he could not bring him back into the deal because the corruption surrounding it "went up higher to the prime minister and his son." Id. at ¶ 27. "I can't fight this mafia," Diveroli told Trebicka, adding: "It got too big. The animals just got out of control." Id.

On August 23, 2007, AEY's office in Miami Beach was raided by federal investigators. Id. at ¶ 28. Throughout the ensuing investigation, both Packouz and Podrizki cooperated with law enforcement. Id. at ¶ 29. Diveroli, Packouz and Podrizki were all ultimately indicted and entered guilty pleas. Id. at ¶¶ 42–43. Packouz and Podrizki were sentenced to house arrest, while Diveroli received a four-year prison sentence. Id. at ¶ 44.

B. The Gerdec Explosion

On March 15, 2008, a factory where workers were dismantling ammunition for scrap exploded in the Albanian town of Gerdec. DSOF at ¶ 30. The explosion killed 26 people and injured hundreds of others. Id. The Gerdec disaster, dubbed a "Political Hiroshima" by the local press, grew into a major scandal. Id. at ¶ 114. It led to the arrests and convictions of MEICO chief Pinari and his associate Delijorgji, who were found to have been involved in the corrupt dealings that resulted in stockpiles of heavy munitions being dismantled by untrained civilians in the middle of a residential area. Id. at ¶ 31; Ex. 8 to Lawson Decl. News reports suggested that both Plaintiff and the Albanian Defense Minister were involved as well, but neither individual was prosecuted. DSOF at ¶ 32.

C. The New York Times Articles

On March 27, 2008, while AEY was still in business, the New York Times published a front-page article about the company under the headline "Supplier Under Scrutiny on Arms for Afghans." DSOF at ¶ 34; Ex. 2 to Lawson Decl. , ECF No. 126-2, at p. 1. Quoting the recording that Trebicka had made of Diveroli, including the latter's statement that "the prime minister and his son" were involved in "mafia" dealings, the article stated that the "secretly recorded" conversation "suggested corruption" in AEY's Albanian deal. Ex. 2 to Lawson Decl. , ECF No. 126-2, at pp. 2, 12.

Plaintiff was aware of the Times article shortly after it was published, but never sued the Times or asked it to issue a correction. DSOF at ¶¶ 38–39. To this day, the article remains available in its original form. Id. at ¶ 40.

On October 8, 2008, the Times reported that Trebicka had been "found dead ... on a rural roadside near his car." Ex. 6 to Lawson Decl. , ECF No. 126-6, at p. 2. The article noted that Trebicka had been a witness in the investigation into the Gerdec explosion and, while the police had ruled his cause of death to be a car crash, that finding was being "strongly questioned" by the Albanian media, with some suspecting a "more sinister" cause. Id. Paraphrasing the contents of Trebicka's recorded call with Diveroli, the article stated that "Mr. Diveroli [had] said the corruption went all the way up to the Albanian prime minister, Sali Berisha, and his son." Id. at p. 4.

D. Lawson's Rolling Stone Article

On March 16, 2011, Rolling Stone magazine published an article about AEY written by Defendant Lawson, an investigative journalist. DSOF at ¶¶ 45–46. The article was entitled "Arms & The Dudes: How Two Stoner Kids from Miami Beach Became Big-Time Arms Dealers—Until the Pentagon Turned on Them." Id. at ¶ 46. In researching the article, Lawson relied on court records, news articles and information and documents that he had obtained from Packouz. Id. at ¶ 47. Lawson has stated that he found Packouz to be "smart, credible and reliable." Id. Rolling Stone subjected Lawson's article to fact-checking prior to publication. Id. at ¶ 48.

Lawson's article reported that AEY's Albanian deal had been structured to pay kickbacks to local officials, and it quoted the now-familiar recorded call in which Diveroli had stated that the corruption in Albania "went up higher, to the prime minister and his son." Id. at ¶ 49. The article also reported that the deal to repackage the ammunition had been taken away from Trebicka so that it could be given to Mihail Delijorgji, "a friend of the prime minister's son." Id. at ¶ 50.

Lawson's article received a "huge" amount of attention and was nominated for the 2012 Best Feature Prize awarded by the American Society of Magazine Editors. Id. at ¶ 51. As with the original New York Times article, Plaintiff was aware of the Rolling Stone ...