Tah v. Global Witness Publ'g, Inc.
| Decision Date | 19 March 2021 |
| Docket Number | C/w 19-7133,No. 19-7132,19-7132 |
| Citation | 991 F.3d 231 |
| Parties | Christiana TAH and Randolph McClain, Appellants v. GLOBAL WITNESS PUBLISHING, INC. and Global Witness, Appellees |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Rodney A. Smolla argued the cause for appellants/cross-appellees. With him on the briefs was Arthur V. Medel, Washington, DC.
Chad R. Bowman argued the cause for appellees/cross-appellants. With him on the briefs were David A. Schulz, Mara J. Gassmann, and Maxwell S. Mishkin, Washington, DC.
Gregory M. Lipper was on the brief for amici curiae Non-Governmental Organizations in support of appellees/cross-appellants.
Bruce D. Brown and Katie Townsend were on the brief for amici curiae Reporters Committee for Freedom of the Press and 26 Media Organizations in support of appellees/cross-appellants.
Before: Srinivasan, Chief Judge, Tatel, Circuit Judge, and Silberman, Senior Circuit Judge.
In this defamation action, two former Liberian officials allege that Global Witness, an international human rights organization, published a report falsely implying that they had accepted bribes in connection with the sale of an oil license for an offshore plot owned by Liberia. The district court dismissed the complaint for failing to plausibly allege actual malice. For the reasons set forth in this opinion, we affirm. The First Amendment provides broad protections for speech about public figures, and the former officials have failed to allege that Global Witness exceeded the bounds of those protections.
Because this appeal comes to us from a dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), "[w]e accept facts alleged in the complaint as true and draw all reasonable inferences from those facts in the plaintiffs’ favor." Hancock v. Urban Outfitters, Inc. , 830 F.3d 511, 513–14 (D.C. Cir. 2016).
The dispute in this case traces its roots to an Atlantic Ocean plot owned by Liberia and thought to have potentially significant oil reserves. Compl. ¶ 18. The National Oil Company of Liberia (NOCAL), responsible under Liberian law for awarding oil licenses, first issued a license for the plot, known as "Block 13," in 2007 to a company called Broadway Consolidated PLC (BCP). Id. ¶¶ 19–21. That transaction was marred by "rumors of corruption," and when BCP failed to fulfill its obligations under its production sharing contract, Liberia began arranging to sell Block 13 to a different oil company. Id . ¶¶ 21–22.
ExxonMobil, a multinational oil company, was interested in purchasing Block 13 but wary of buying the license directly from BCP given the rumors of corruption surrounding the 2007 transaction. Accordingly, Exxon got a third-party, Canadian Overseas Petroleum Limited, to buy the Block 13 license and resell it to Exxon. In exchange, Exxon paid $120 million, of which $50 million went directly to Liberia—the most Liberia had ever received in a single natural resources deal. Id. ¶ 22. Unlike in the BCP transaction, Liberia was represented in these negotiations by the Hydrocarbon Technical Committee (HTC), a six-member government entity created to "superintend [ ] negotiations" between oil companies and NOCAL. Id. ¶¶ 23–24. Plaintiffs Christiana Tah and Randolph McClain, Liberia's Minister of Justice and NOCAL's CEO respectively, were HTC members during the transaction.
After the deal was consummated, the Liberian President directed NOCAL's board to pay bonuses to those responsible for the new agreement as a "reward for exceptionally well-done service." Id. ¶¶ 25–26, 28. But before the board determined the size of the bonuses, McClain "asked two of the HTC members, the President's Legal Advisor, Seward Cooper, and Minister of Justice, Christiana Tah, if payment of such bonuses would be legally permissible." Id . ¶ 26. Cooper and Tah "concluded" that they were legal for "two ... independent reasons." Id. ¶ 28. First, the pertinent Liberian anti-corruption law had "expired and was no longer legally operative." Id . And second, even had the law remained in force, the bonuses would still pass muster because they "had come at the initiative of [the] President" and "[n]o prospective recipient of the bonuses claimed to have demanded any such bonus payments." Id.
NOCAL's board then authorized "approximately $500,000" worth of bonuses. Id. ¶ 29. Each "member[ ] of the HTC, including ... Tah and ... McClain, received ... $35,000," and each of "five consultants were ... sent bonuses of $15,000." Id. The rest of the funds were split among the remaining NOCAL employees, including drivers and custodial workers. Id . The $35,000 payments to Tah and McClain are the focus of this case.
According to Global Witness's report, Catch me if you can , the organization first learned of Exxon's Block 13 deal from the Liberian Extractive Industries Transparency Initiative (LEITI), a semi-autonomous Liberian agency that publishes information about payments made by energy companies to the Liberian government. Because of NOCAL's "tarnished track record of corrupt deals, Global Witness saw there was a risk of bribery and began its investigation." Catch me if you can ("Report") at 9; see also Compl. ¶ 42. Global Witness focused on Block 13 in order to highlight the "critical information" provided by section 1504 of the Dodd-Frank Act, see 15 U.S.C. § 78m(q), which "[l]ike LEITI, ... requires all oil, gas, and mining companies to report the payments they make to governments." Report at 9.
Catch me if you can addresses Block 13's background and the corruption surrounding the BCP deal. For example, it states BCP was "likely part-owned by [now-former Liberian] government officials with the power to influence the award of oil licenses," and that the award of Block 13 to BCP therefore violated Liberian law. Id. at 12. The report also claims that the BCP license was approved due to bribery. It then explains how Exxon structured its transaction to alleviate its concerns about the BCP deal.
The report principally addresses the $35,000 payments in a section titled "Monrovia, 2013: Awash in Cash." Id. at 30–31. This section discusses what are repeatedly described as "unusual, large" payments made to HTC members, referencing Tah and McClain by name. Id. at 30. It states that NOCAL characterized the payments as "bonuses," using scare quotes whenever it repeats the word "bonus," and claims that the payments "appear ... to be linked to the HTC's signing of Block 13." Id .
In support of its claim that the payments were "large" and "unusual," the report states that "there is no sign of equivalent bonuses during" the surrounding years, "except for smaller yearly bonuses paid shortly before Christmas[;]" that "the payments represented a 160 percent increase on the reported highest salary paid to a Liberian minister[;]" and that one HTC member who was supposedly working for free nonetheless received a payment. Id. The report then gives the definition of bribery under Liberian law and references some of the corruption surrounding the 2007 BCP deal—specifically, payments NOCAL made to members of the Liberian legislature to ensure approval of that earlier license, which NOCAL deemed "lobbying fees," and which the Liberian Government's General Auditing Commission later "classified as bribes." Id.
A few weeks before Global Witness issued the report, it sent letters to HTC members informing each that "we believe that the payment made by NOCAL to you was most likely a bribe, paid as a reward to ensure that [Block] 13 was negotiated successfully," and asking for a response. Compl. ¶¶ 91–92. Several HTC members, including Tah, denied that the payments were bribes, insisting they were bonuses authorized by NOCAL's board that were "appropriately earned given the extraordinary success of the Exxon negotiations," and pointing out that all NOCAL employees received bonuses. Id. ¶¶ 93–95. Global Witness included excerpts from these denials in the report. Report at 30.
The report also discusses Exxon's relationship to these payments. It characterizes them as evidence of Exxon's possible "complicit[y]" in "Liberia's corrupt oil sector," declaring that "Exxon should have known better." Id. at 32–33. According to the report, "Exxon ... knew it was buying a license with illegal origins" and the payments were "in effect ... likely made with Exxon's money." Id. Although stating that "Global Witness believes that Exxon should have considered it possible that money the company provided to NOCAL could have been used as bribes in connection with Exxon's Block 13 deal," the report acknowledges that "Global Witness has no evidence that Exxon directed NOCAL to pay Liberian officials, nor that Exxon knew such payments were occurring." Id. at 31–32.
Lastly, Global Witness called on the Liberian government to investigate the payments and, in the event such investigation uncovers unlawful behavior, urged the U.S. Department of Justice "to determine if the company violated the [Foreign Corrupt Practices Act]." Id. at 32. Global Witness sent copies of the report to the U.S. Attorney General and the Chairman of the Securities and Exchange Commission. Compl. ¶¶ 100–02.
Following the report's publication, the Liberian government investigated the payments and concluded that they did not "constitute[ ] bribe[s] within the context of [Liberian] law" and were not "made so [the HTC] could undertake [an] official act." Id. ¶ 81 (internal quotation marks omitted). The Liberian government nonetheless recommended that the HTC members return the payments. Id. ¶ 83. Tah and McClain refused, asserting that the payments were above-board bonuses for a job well done. Id.
Believing that Catch me if you can falsely impugns their integrity and reputations, Tah and McClain sued Global Witness for defamation and false light invasion of privacy. They dispute none of the facts contained in the report but argue...
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