Jankovic v. International Crisis Group

• Decision Date: 29 January 2010
• Docket Number: No. 09-7044.,09-7044.
• Citation: 593 F.3d 22
• Parties: Milan JANKOVIC, also known as Philip Zepter, Appellant v. INTERNATIONAL CRISIS GROUP, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

593 F.3d 22

Milan JANKOVIC, also known as Philip Zepter, Appellant v. INTERNATIONAL CRISIS GROUP, et al., Appellees.

No. 09-7044.

United States Court of Appeals, District of Columbia Circuit.

Argued November 16, 2009.

Decided January 29, 2010.

Appeal from the United States District Court for the District of Columbia (No. 1:04-cv-01198-RBW).

William T. O'Brien argued the cause for appellant. With him on the briefs were Lisa M. Norrett, John W. Lomas Jr., and Malcolm I. Lewin.

Amy L. Neuhardt argued the cause for appellee International Crisis Group. With her on the brief was Jonathan L. Greenblatt. Neil H. Koslowe entered an appearance.

Before GINSBURG and GRIFFITH, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge WILLIAMS.

WILLIAMS, Senior Circuit Judge:

Milan Jankovic, also known as Philip Zepter, sued International Crisis Group and additional unnamed defendants Does 1 through 10 ("ICG," for the institution or for all defendants, as appropriate) for defamation, false light and intentional interference with business expectancy. The district court issued an order granting ICG's motion to dismiss (the "Order"), J.A. 1221-28 and Jankovic appeals. We reverse in part, affirm in part, and remand for additional proceedings.

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Jankovic is the founder of Zepter Group, which provides "a wide range of products and services, including banking, insurance, telecommunications, and retail sales of consumer products." J.A. 20. ICG is a non-profit organization that describes itself as "working through field-based analysis and high-level advocacy to prevent and resolve deadly conflict." International Crisis Group, Serbian Reform Stalls Again, ICG Balkans Report No. 145 at 30 (July 17, 2003) ("Report 145") J.A. 82-124. ICG's "reports and briefing papers are distributed widely by email and printed copy to officials in foreign ministries and international organisations and made generally available at the same time via the organisation's Internet site." Id. The language at issue in this case appears in ICG's Report 145, which addresses the deceleration of Serbian reforms—reforms initially spurred by the assassination of Premier Zoran Djindjic. We excerpt it below, numbering the sentences to assist discussion:

[1] The unwillingness to continue the crackdown reflects the power of the Milosevic-era financial structures that— with the rigid oversight once provided by the dictator removed—have transformed themselves into a new Serbian oligarchy that finances many of the leading political parties and has tremendous influence over government decisions. [2] Some of the companies were originally formed as fronts by State Security or Army Counterintelligence (KOS), while others operated at the direct pleasure of the ruling couple. [3] Under Milosevic, many of these companies profited from special informal monopolies, as well as the use of privileged exchange rates. [4] In return, many of them financed the regime and its parallel structures.

[5] Some of the individuals and companies are well known to average Serbs: Delta Holding (Milorad Miskovic), Karic (Bogoljub Karic), Pink (Zeljko Mitrovic), Zepter (Milan Jankovic, aka Filip Zepter), Kapital Banka (Djordje Nicovic), Toza Markovic (Dmitar Segrt), Progres (Mirko Marjanovic), Simpo (Dragan Tomic), Komercijalna Banka (Ljubomir Mihajlovic), Novokabel (Djordje Siradovic), Stanko Subotic, Dibek (Milan Beko), ABC (Radisav Rodic), Hemofarm (Miodrag Babic), AIK Banka Nis (Ljubisa Jovanovic) and Dijamant (Savo Knezevic) are but some of the most prominent. [6] Because of the support they gave to Milosevic and the parallel structures that characterised his regime, many of these individuals or companies have at one time or another been on EU visa ban lists, while others have had their assets frozen in Europe or the US.⁸⁰

[7] In the popular mind, they and their companies were associated with the Milosevic regime and benefited from it directly. [8] The DOS campaign platform in September 2000 promised that crony companies and their owners would be forced to answer for past misdeeds. [9] Few of the Milosevic crony companies have been subjected to legal action, however. [10] The enforcement of the "extra-profit" law is often viewed as selective and there have been only a handful of instances in which back taxes, perhaps 65 million Euros worth, have been collected.⁸¹ [11] Most disturbing is the public's perception that—at a time when the economy is worsening—these companies' positions of power, influence and access to public resources seem to have changed very little.

^80. http://europa.eu.int/index.eu.htm#; http://www.treas.gov/offices/eotffc/ofac/sdn/index.html

^81. ICG interview with Finance Minister Djelic.

Report 145 at 17.

Plaintiff initially alleged that the above passage (as well as two others in Report 145) contained defamatory statements, placed him in a false light, and intentionally interfered with his business expectancies. Jankovic v. Int'l Crisis Group, 429 F.Supp.2d 165, 168-69 (D.D.C.2006). The district court dismissed these claims, characterizing the passages as "not capable of defamatory meaning" and ruling that, as a result, they could not support either of the other claims. Id. at 179. In Jankovic v. Int'l Crisis Group, 494 F.3d 1080 (D.C.Cir. 2007), we reversed the district court's dismissal in part, finding that the passage excerpted above was susceptible of a defamatory reading. Id. at 1091.

Specifically, following the sequence laid out in Moldea v. New York Times Co. 15 F.3d 1137, 1142 (D.C.Cir.1994) (Moldea I), we first found that, despite "numerous qualifiers," a reasonable reader could construe the passage as asserting "that Philip Zepter, personally, was a `crony' of Milosevic who supported the regime in exchange for favorable treatment" and "that Philip Zepter was actively in alliance with Milosevic and his regime." Jankovic, 494 F.3d at 1091.

The understanding that Report 145 accused Jankovic of "supporting" the Milosevic regime clearly derives from sentences 5 and 6 of the passage. Sentence 5 lists "Zepter (Milan Jankovic, aka Filip Zepter)" as belonging to the new Serbian oligarchy described in the first sentence. Sentence 6 imputes support of Milosevic ("and the parallel structures that characterised his regime") to those named in sentence 5. In addition, sentences 1 through 4 implied the quid pro quo feature that we identified ("in exchange for favorable treatment").

We note that sentences 2, 3, 4 and 6 use the pronouns "some" or "many," leaving open the possibility that readers of Report 145 might not suppose that the companies and individuals named in sentence 5 were generally guilty of the conduct charged in sentences 2, 3, 4 and 6. But the prior panel, though recognizing that the passage contained a number of "qualifiers," Jankovic, 494 F.3d at 1091, could not have reached its interpretation unless it supposed that ordinary, reasonable readers could read the report as implying that those named in sentence 5 were guilty of supporting Milosevic and of receiving favorable treatment in exchange. Even if we disagreed with that understanding, which we do not, we are bound to it under the doctrine of law of the case. LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C.Cir. 1996) (en banc) ("[T]he same issue presented a second time in the same case in the same court should lead to the same result.") (emphasis in original).

As to the defamatory quality of the assertions, we observed that "[m]erely associating somebody with a foreign government would not ordinarily be defamatory"; but, citing a case involving the apartheid regime of South Africa, we found that in this case the relationship asserted could be "sufficiently `odious, infamous, or ridiculous'" to so qualify. Jankovic, 494 F.3d at 1091 (citing Southern Air Transport, Inc. v. ABC, Inc., 877 F.2d 1010 (D.C.Cir. 1989)). We remanded to the district court with instructions that it consider "the applicability and merits of . . . Opinion and Fair Comment Protection, the Fair Report Privilege, or the Neutral-Reportage Doctrine." Id.

On remand, ICG filed a motion seeking dismissal on grounds of opinion, fair comment, and fair report privilege. Jankovic opposed and also sought discovery on facts relating to the asserted defenses. The district court denied Jankovic's discovery motion and concluded that the passage was shielded by the fair report and fair comment privileges and protected as opinion. Holding that the passage was non-actionable, the district court dismissed all of Jankovic's claims. Order at 2. The court also held that the claim for intentional interference with business expectancy was inadequately pled. Id. at 6-7.

Jankovic now challenges all these rulings. We review the district court's dismissal de novo. Weyrich v. New Republic, Inc., 235 F.3d 617, 623-24 (D.C.Cir.2001). While we affirm dismissal of the claim for intentional interference with business expectancy, we hold that none of the privileges or protections raised by ICG applies to the assertions that Jankovic supported the Milosevic regime and that he received advantages in exchange. Accordingly, we remand the case for further proceedings on the claims for defamation and false light.

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A. The privileges and defenses

Fair report. Under applicable District of Columbia law, a defendant must "clear[ ] two major hurdles" to qualify for the fair report privilege. Phillips v. Evening Star Newspaper Co., 424 A.2d 78, 89 (D.C.App.1980). It must show, first, that its publication was a "fair and accurate report" of a qualified government source, and, second, that the publication properly attributed the statement to the official source. Id. See also Dameron v. Washington Magazine, Inc., 779 F.2d 736 (D.C.Cir.1985); Prins v. Int'l Telephone & Telegraph Corp., 757 F.Supp. 87, 93 (D.D.C.1991).

There are serious problems on the score of proper "attribution." The pertinent government source is...