The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 4, 2025 Decided July 7, 2026
No. 24-7152
ZIA CHISHTI AND SARAH POBERESKIN,
APPELLANTS
v.
TATIANA SPOTTISWOODE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:22-cv-03490)
Christopher G. Michel argued the cause for appellants.
On the briefs were Benjamin G. Chew and Andrew Crawford.
Matthew C. Daly argued the cause for appellees. With
him on the brief were Mark Bailen, Martin S. Hyman, Jason R.
Waters, John L. Slimm, Jeremy J. Zacharias, John D.
Taliaferro, and Nicole Travers. John Palenski entered an
appearance.
Before: CHILDS and PAN, Circuit Judges, and ROGERS,
Senior Circuit Judge.
Opinion for the Court by Senior Circuit Judge ROGERS.
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ROGERS, Senior Circuit Judge: This is an appeal from the
dismissal with prejudice of an amended complaint seeking
compensatory and punitive damages, rescission of an arbitral
award, and other relief for alleged defamation and related
claims under District of Columbia law. The district court
described this litigation as “a not-so-thinly veiled attempt to
undo the outcome of an arbitration that rejected Chishti’s
account of events and ruled in Spottiswoode’s favor.” Zia
Chishti, et al. v. Tatiana Spottiswoode, et al., No. 1:22-cv-
03490 (D.D.C. Sept. 30, 2024) (Mem. Op. at 6). For the
following reasons, this court affirms. Succinctly put, Zia
Chishti’s defamation and false light claims based on Tatiana
Spottiswoode’s testimony before Congress, as well as Chishti’s
related breach of contract claim, are protected under District of
Columbia law by a common law privilege for witnesses
communicating information to a legislative body and therefore
not actionable. Spottiswoode’s and her attorney’s statements
to the news media and on social media after Spottiswoode’s
congressional testimony as well as republications of
Spottiswoode’s testimony, are opinions protected by the First
Amendment to the Constitution and the fair reporting privilege,
and therefore also not actionable. Chishti’s other tort claims
are duplicative of his defamation claim, while his conspiracy
claim and his wife’s claim for loss of consortium fail in the
absence of underlying torts.
I.
According to the amended complaint, Chishti and
Spottiswoode were in a “consensual romantic relationship”
that was “on-and-off” between December 2014 and January
2017 and thereafter revived between July and October 2017.
Am. Compl. ¶¶ 15, 41. Chishti was Chief Executive Officer
of Afiniti, a technology company, and an executive of The
Resource Group (“TRG”), an investment company. Id. ¶¶ 8,
22, 91. Spottiswoode, whose father James Spottiswoode was
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TRG’s Chief Scientist, id. ¶ 65, joined Afiniti in April 2016,
after graduating from college. Id. ¶¶ 22, 106. Her
employment contract contained an arbitration agreement
requiring all future claims against Afiniti and its officers,
among others, to be resolved in confidential arbitration under
the rules of the American Arbitration Association. Id. ¶¶ 23–
24; Ex. A at 7.
In October 2017, acting through attorney Michael Zweig,
Spottiswoode accused Chishti of “harassment and assault.”
Id. ¶ 58. She demanded $50 million to settle her claims or she
would file a lawsuit, and she threatened to sue Afiniti as well.
Id. ¶¶ 60–61. Afiniti and Chishti initiated arbitration
proceedings in December 2017. Id. ¶ 63. The arbitrator
issued protective orders on exceptions to the non-disclosure
agreement and the confidentiality of arbitration materials. Id.
¶¶ 175–76; Protective Order No. 3 (May 9, 2018), Ex. K;
Protective Order No. 9 (Aug. 6, 2018), Ex. B. After
Spottiswoode’s father resigned as Chief Scientist, TRG also
initiated arbitration proceedings on September 13, 2018, based
on his alleged theft of trade secrets. Id. ¶¶ 65, 66. On April
19, 2019, following discovery and a hearing, an Arbitral Award
issued in Spottiswoode’s favor. Id. ¶ 279.
Over two years later, Spottiswoode was subpoenaed by
Congress to testify before the House Judiciary Committee on
November 16, 2021, id. ¶ 246, regarding H.R. 4445, 117th
Cong. (2021), a Bill to amend the U.S. Code “with respect to
arbitration of disputes involving sexual assault and sexual
harassment” that was introduced in the House of
Representatives on July 16, 2021. Id. at 1. The day before
the hearing, Spottiswoode submitted her proposed testimony to
the Committee and informed Chishti of the hearing and her
subpoena to testify. Id. ¶¶ 106, 187. Committee staff denied
Chishti’s request on that date to offer evidence and testimony
to refute Spottiswoode’s account. Id. ¶ 78. Spottiswoode
and other women offered public testimony on November 16.
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Id. ¶ 81. On March 3, 2022, President Biden signed into law
the Ending Forced Arbitration of Sexual Assault and Sexual
Harassment Act of 2021 (“the Act”), Pub. L. No. 117–90, 136
Stat. 26 (codified as amended in scattered sections of 9 U.S.C.).
A copy of the Arbitration Award was filed by the Chairman of
the House Judiciary Committee in the Congressional Record
on December 17, 2022. Id. ¶ 96.
A month earlier, on November 13, 2022, Chishti and his
wife, Sarah Pobereskin, filed a pro se sealed complaint against
Spottiswoode, her attorneys Nancy Smith and Michael Zweig,
Spottiswoode’s father and his attorney, Edward Johnson, and
various John Does, individually and collectively. Zia Chishti,
et al. v. Tatiana Spottiswoode, et al., No. 1:22-cv-03490
(D.D.C. Nov. 13, 2022). A second complaint filed by Chishti
on March 22, 2023, in the Superior Court of the District of
Columbia was consolidated by the district court upon
Spottiswoode’s motion for removal. Order at 1 (May 12,
2023). On the same day, the district court struck the first
complaint for failure to comply with Federal Rules of Civil
Procedure 8(a)(2) and 12(f). Id. at 2.
On June 30, 2023, Chishti and his wife filed an amended
complaint, which the district court unsealed. Am. Compl.
(June 30, 2023); Min. Order (Jan. 25, 2024). Chishti alleged
that Spottiswoode’s congressional testimony and related
actions by her and attorney Smith were part of “an elaborate,
and arguably extortive, smear campaign . . . falsely accusing
Chishti of sexual misconduct and other offensive acts.” Am.
Compl. ¶¶ 1–2. Further, that they had “developed a plan to
secure Spottiswoode an opportunity to provide testimony in
front of Congress,” id. ¶ 71, and then “commenced a scorched
earth public relations campaign aimed at reinvigorating
numerous claims against Chishti,” including posts on Twitter,
a social media platform, and statements published in The
Telegraph, a British newspaper, id. ¶¶ 83, 84–88, in order “to
destroy Chishti from a reputational, professional, and financial
5
standpoint,” id. ¶ 307. In doing so, Chishti alleged, they also
breached protective orders issued in the arbitration. Id.
¶¶ 179, 197. As a result of their “defamatory statements and
blackmail,” Chishti alleged that he was “forced” to resign from
his executive positions at Afiniti on November 18, 2021, and
at TRG on November 28, 2021, id. ¶ 91. After his resignation,
Chishti alleged, in order “to halt Spottiswoode’s and Smith’s
ongoing media barrage against the company itself,” TRG
settled its arbitration with Spottiswoode’s father “paying him
money even though he [allegedly] had stolen . . . trade secrets.”
Id. ¶ 92. Chishti’s wife filed a claim for loss of consortium
against Spottiswoode and her two attorneys due to
“psychological harm” allegedly suffered as a result of their
“defamatory allegations.” Id. ¶ 312.
On September 30, 2024, the district court granted
Spottiswoode’s and the other appellees’ motions to dismiss the
amended complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim and dismissed
the complaint with prejudice. Mem. Op. at 6 & Order at 1
(Sept. 30, 2024). Chishti and his wife appeal.
II.
This court reviews de novo a dismissal of a complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure
to state a claim. N. Am. Butterfly Ass’n v. Wolf, 977 F.3d
1244, 1249 (D.C. Cir. 2020). “To survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court will
“accept the operative complaint’s well-pleaded factual
allegations as true and draw all reasonable inferences” in the
plaintiffs’ favor. N. Am. Butterfly Ass’n, 977 F.3d at 1249.
“In determining whether a complaint fails to state a claim, [the
court] may consider only the facts alleged in the complaint, any
6
documents either attached to or incorporated in the
complaint[,] and matters of which [the court] may take judicial
notice.” EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d
621, 624 (D.C. Cir. 1997). The court “need not accept
inferences unsupported by facts or legal conclusions cast in the
form of factual allegations,” City of Harper Woods Emps.’ Ret.
Sys. v. Olver, 589 F.3d 1292, 1298 (D.C. Cir. 2009), nor
“accept as true the complaint’s factual allegations insofar as
they contradict exhibits to the complaint or matters subject to
judicial notice.” Kaempe v. Myers, 367 F.3d 958, 963 (D.C.
Cir. 2004).
The Arbitral Award in the Congressional Record and the
related legislation are “public records subject to judicial notice
on a motion to dismiss.” Id. at 965. The Arbitral Award,
which was appended to Smith’s motion to dismiss and the
authenticity of which is not disputed, may also be considered
because it is “referred to in the complaint” and is “integral” to
Chishti’s defamation and related claims. Id.; see, e.g., Am.
Compl. ¶¶ 95–97, 178, 279.
Because Chishti seeks recovery under District of
Columbia law, Am. Compl. ¶¶ 5–7, the court applies the
substantive law of the District of Columbia and endeavors “to
achieve the same outcome . . . [that] would result if the District
of Columbia Court of Appeals considered this case.” Novak
v. Cap. Mgmt. & Dev. Corp., 452 F.3d 902, 907 (D.C. Cir.
2006).
III.
Counts I and II: Defamation and False Light. Chishti
alleges that he has suffered reputation injuries as a result of
Spottiswoode’s testimony before the House Judiciary
Committee on November 16, 2021, that was part of “an
elaborate . . . smear campaign perpetrated by the Defendants”
in the District of Columbia, and “directed at residents of the
7
District of Columbia.” Am. Compl. ¶¶ 1, 5–6. The alleged
defamatory statements are Spottiswoode’s written and oral
statements to the House Judiciary Committee in November
2021 and statements attributed to her and attorney Smith
published in The Telegraph and Smith’s posts on Twitter.
To plead defamation under District of Columbia law, a
plaintiff must plausibly allege:
(1) that the defendant made a false and defamatory
statement concerning the plaintiff; (2) that the
defendant published the statement without privilege
to a third party; (3) that the defendant’s fault in
publishing the statement met the requisite standard;
and (4) either that the statement was actionable as a
matter of law irrespective of special harm or that its
publication caused the plaintiff special harm.
Competitive Enter. Inst. v. Mann, 150 A.3d 1213, 1240 (D.C.
2016), as amended (Dec. 13, 2018) (internal punctuation and
footnote omitted) (quoting Oparaugo v. Watts, 884 A.2d 63,
76 (D.C. 2005)). And the plaintiff must plausibly allege “that
a ‘reasonable listener’ could think that [the defendants were]
referring to [him].” Browning v. Clinton, 292 F.3d 235, 247
(D.C. Cir. 2002). “Though invasion of privacy false light is
distinct from the tort of defamation, the same First Amendment
protections apply.” Khodorkovskaya v. Gay, 5 F.4th 80, 85
(D.C. Cir. 2021) (quoting Weyrich v. New Republic, Inc., 235
F.3d 617, 627 (D.C. Cir. 2001)); Blodgett v. Univ. Club, 930
A.2d 210, 222–23 (D.C. 2007). “And a plaintiff may not
avoid the strictures of the burdens of proof associated with
defamation by resorting to a claim of false light invasion.”
Khodorkovskaya, 5 F.4th at 85 (quoted citation and internal
quotation marks omitted).
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Separate analyses apply to Spottiswoode’s statements to
Congress and to her and her attorney Smith’s post-hearing
statements.
A.
Chishti’s claims about Spottiswoode’s statements to
Congress fail under the common law privilege for statements
to the legislature. This court has previously examined the
relevant District of Columbia law in two opinions discussed by
the district court. Mem. Op. at 10–14. In Webster v. Sun Co.,
790 F.2d 157 (D.C. Cir. 1986) (“Webster II”), this court
concluded that “a common law privilege for communications
to the legislature” in Section 590A of the Restatement (Second)
of Torts “accurately ‘reflects’” District of Columbia law. Id.
at 160 (citation omitted). Under the privilege, “[a] witness is
absolutely privileged to publish defamatory matter as a part of
a legislative proceeding in which he is testifying or in
communications preliminary to the proceeding, if the matter
has some relation to the proceeding.” Id. at 159 n.2 (quoting
Restatement (Second) of Torts § 590A (1977)).
Chishti maintains that the privilege is inapplicable to
Spottiswoode’s written and oral statements before the House
Judiciary Committee under Webster v. Sun Co., 731 F.2d 1
(D.C. Cir. 1984) (“Webster I”), because her statements were
“unsolicited” and “made in bad faith.” Appellants’ Br. 21.
In Webster I, an employee of Sun Company sent the
Congressional Research Service (“CRS”) an unsolicited
memorandum allegedly libeling a competitor, Sherwood
Webster, and disparaging a device he invented. 731 F.2d at
2–3. Webster sued for libel and disparagement of product,
and Sun Company defended on the ground that its statements
to Congress were absolutely privileged under the District of
Columbia common law privilege for communications to a
legislative body. Id. at 3. This court held that for the
legislative privilege to apply, a party must show that the
9
unsolicited statements were made with “intention to inform the
legislative body on a subject properly within its jurisdiction,”
and that the statements had “some relation to the legitimate
legislative business to which it is addressed.” Id. at 5. The
district court had granted summary judgment for Webster,
ruling that the legislative privilege applied because the
memorandum had a “relation to” CRS’s activities. Id. at 2–3.
This court remanded for the district court to make “sufficient
factual findings” to determine whether the statements were
made with “intent to inform” the CRS, id. at 6–7, and
subsequently affirmed the dismissal of the libel action as
privileged after the district court found the statements were
made with both the intent to inform and a “self-serving
motive,” Webster II, 790 F.2d at 161–62.
It is undisputed that Spottiswoode’s oral and written
statements before the House Judiciary Committee had a
“relation to” Congress’s ongoing consideration of pending
legislation on the forced arbitration of sexual assault claims.
The district court ruled that the intention requirement in
Webster I, 731 F.2d at 5, was inapposite because
Spottiswoode’s statements were solicited. Mem. Op. 13.
Even so, Spottiswoode’s statements met Webster I’s intention
requirement because they were made pursuant to a
congressional subpoena during the pendency of a bill on the
forced arbitration of sexual assault claims, which was the
subject of Spottiswoode’s testimony, and therefore made with
the “intention to inform the legislative body.” Webster I, 731
F.2d at 5.
Chishti’s bad faith claim is also misplaced. Even if as
alleged Spottiswoode’s statements were made “to defame and
damage [him], gain litigation advantage, and for personal
gain,” Appellants’ Br. 27, a party may have a dual motive in
making a statement to the legislature and still receive the
benefits of the privilege so long as the statement is also made
with an intent to inform. Webster II, 790 F.2d at 161.
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Spottiswoode’s statements comport with Webster I and Chishti
points to no contrary authority. The court, therefore, need not
consider whether Chishti sufficiently alleged bad faith, and
likewise has no occasion to invoke an Irons footnote to reverse
Webster I insofar as it applied a “bad faith” test.
B.
Chishti fares no better in contending that the district court
erred as a matter of law in ruling the post-hearing statements
by Spottiswoode and her attorney Smith to The Telegraph and
in posts on Twitter were protected opinion and subject to the
fair comment and fair reporting privileges. Appellants’
Br. 29. Many of these statements are protected opinion
because they do not express verifiable facts that are capable of
defamatory meaning; the rest are covered by the fair reporting
privilege.
“Under the First Amendment, liability for defamation
arises only if, at a minimum, a defendant’s statement
‘reasonably implies false and defamatory facts.’” Farah v.
Esquire Mag., 736 F.3d 528, 534 (D.C. Cir. 2013) (quoting
Milkovich v. Lorain J. Co., 497 U.S. 1, 20 (1990)); see
Competitive Enter. Inst., 150 A.3d at 1241. The First
Amendment implicitly provides three protections, for: (1)
“statements that cannot reasonably [be] interpreted as stating
actual facts about an individual.” Farah, 736 F.3d at 534
(internal quotation marks omitted). (2) “a statement on matters
of public concern [that] must be provable as false before there
can be liability under state defamation law . . . where a media
defendant is involved,” id. (quoting Milkovich, 497 U.S. at 19–
20), because “a defendant cannot be held liable unless the
alleged defamatory statement or implied premise is
‘verifiable,’” id. (quoting Moldea v. N.Y. Times Co., 22 F.3d
310, 317 (D.C. Cir. 1994) (“Moldea II”)). Thus, “[w]here a
statement is so imprecise or subjective that it is not capable of
being proved true or false, it is not actionable in defamation.”
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Id. at 534–35. (3) a “disputed statement [] ‘reasonably
capable of defamatory meaning.’” Id. at 535 (quoting
Weyrich, 235 F.3d at 623). A defamatory statement “tends to
injure plaintiff in his trade, profession or community standing,
or lower him in the estimation of the community.” Weyrich,
235 F.3d at 627 (quoting Liberty Lobby, Inc. v. Dow Jones &
Co., 838 F.2d 1287, 1293–94 (D.C. Cir. 1988)). But it is not
enough for the “allegedly defamatory remark” to be
“unpleasant or offensive; the language must make the plaintiff
appear ‘odious, infamous, or ridiculous.’” Id. (quoting
Howard Univ. v. Best, 484 A.2d 958, 989 (D.C. 1984)).
Whether a statement could reasonably be understood as stating
or implying actual and verifiable facts about Chishti that are
reasonably capable of defamatory meaning is a threshold
question for the court to decide. Farah, 736 F.3d at 535. The
“publication must be taken as a whole, and in the sense in
which it would be understood by the readers to whom it was
addressed.” Id. (quoting Afro–American Publ’g Co. v. Jaffe,
366 F.2d 649, 655 (D.C. Cir. 1966)).
The District of Columbia recognizes a “freestanding
doctrine” of “fair comment” privilege. Jankovic v. Int’l Crisis
Grp., 593 F.3d 22, 29 (D.C. Cir. 2010). The “long
recognized” common law doctrine “accord[s] the media the
privilege of fair comment on matters of public interest,” so long
as the opinions expressed are based on true facts. Phillips v.
Evening Star Newspaper Co., 424 A.2d 78, 88 (D.C. 1980).
The Supreme Court explained that the “fair comment”
privilege “was incorporated into the common law as an
affirmative defense to an action for defamation” due to
“concerns that unduly burdensome defamation laws could
stifle valuable public debate.” Milkovich, 497 U.S. at 13.
The privilege affords “legal immunity for the honest
expression of opinion on matters of legitimate public interest
when based upon a true or privileged statement of fact.” Id.
(citing 1 F. Harper & F. James, Law of Torts § 5.28, p. 456
(1956) (footnote omitted)). In the District of Columbia, the
12
fair comment privilege can be invoked even when the
underlying facts are not included with the comment. Fisher v.
Wash. Post Co., 212 A.2d 335, 338 (D.C. 1965) (following
Restatement (Second) of Torts § 606 as the “better view”).
Because the court affirms on First Amendment grounds, there
is no occasion to consider whether the District of Columbia
privilege of fair comment became “obsolete” in light of broader
First Amendment protections, Appellants’ Br. 33 n.4 (quoting
Pearce v. E.F. Hutton Grp., Inc., 664 F. Supp. 1490, 1503
(D.D.C. 1987)).
The District of Columbia also recognizes “a fair reporting
privilege” that protects “accurate and complete” publications
of “official proceedings” published without “malice” and “for
the purpose of informing the public as to a matter of public
concern.” Oparaugo, 884 A.2d at 81 (quoting Phillips, 424
A.2d at 88); White v. Fraternal Order of Police, 909 F.2d 512,
527 (D.C. Cir. 1990) (relying on Restatement (Second) of Torts
§ 611, cmt. d). “In order to avail [one]self of the privilege, the
publisher must give fair attribution to the source of the alleged
official record.” Oparaugo, 884 A.2d at 81. The privilege
even shields “the accurate report of even false information” so
long as it is “obtained from an official record and proper
attribution is given to its source.” Id.
Chishti maintains that three statements by Spottiswoode to
The Telegraph on November 18, 2021, are actionable
defamation: (1) “Everyone involved in the misogynist culture
at Afiniti – there are quite a few – should be held accountable.”
(2) “Everyone who enabled it should be held accountable. As
long as they still have forced arbitration, we can assume this
behavior is ongoing.” (3) “On a personal level, the board
should insist that Afiniti and Chishti pay my father for the stock
they seized and for his attorneys[’] fees and dismiss the
retaliatory arbitration they filed to scare and punish me.”
Appellants’ Br. 30 (quoting Am. Compl. ¶¶ 85, 121, Ex. F).
In Chishti’s view, “[t]hese statements can be proven true or
13
false based on a core of objective evidence such as company
records and evidence about employees at Afiniti, their
treatment of women, whether Afiniti sanctioned ongoing
misconduct, and whether Spottiswoode’s father’s stock was
seized.” Id. at 31 (internal quotation marks omitted).
Further, in his view, “[he], as the CEO of Afiniti, will be
readily understood by a reader to be one of the individuals
‘involved in’ or ‘enabl[ing]’ a misogynist culture at Afiniti”
and to have “‘seized’ Spottiswoode’s father’s stock and filed a
‘retaliatory arbitration’ to ‘scare and punish’ Spottiswoode.”
Id. (alteration in original).
Even assuming a reasonable reader could understand
Spottiswoode’s statements regarding the “misogynist culture at
Afiniti” and “retaliatory arbitration . . . filed [by Afiniti and
Chishti] to scare and punish” her to refer to Chishti, the
statements are inactionable opinions based on true facts.
“[W]hen a [person] gives a statement of opinion that is based
upon true facts that are revealed to readers or which are already
known to readers, such opinions generally are not actionable
so long as the opinion does not otherwise imply unstated
defamatory facts.” Farah, 736 F.3d at 539 (quoting Moldea v.
N. Y. Times Co., 15 F.3d 1137, 1144–45 (D.C. Cir. 1994)
(“Moldea I”)) (emphasis in original); Milkovich, 497 U.S. at
20. That is “[b]ecause the reader understands that such
supported opinions represent the [person’s] interpretation of
the facts presented, and because the reader is free to draw his
or her own conclusions based upon those facts, this type of
statement is not actionable in defamation.” Farah, 736 F.3d
at 539 (quoting Moldea I, 15 F.3d at 1144–45); see Florio v.
Gallaudet Univ., 119 F.4th 67, 77–78 (D.C. Cir. 2024). Read
in context as the First Amendment “demands,” Weyrich, 235
F.3d at 625 (citing Moldea II, 22 F.3d at 314), a reasonable
reader would understand Spottiswoode’s statements to offer
opinions, based on her first-hand experience, about true facts:
the company’s then-existing policy of mandatory arbitration of
sexual harassment claims and the then-pending arbitration
14
action filed by the company against her father. Readers can
judge for themselves whether a company (and its CEO) that
adopts such policies enables a “misogynist culture” or whether
the company’s arbitration action filed against Spottiswoode’s
father after she came forward with allegations of sexual assault
was “retaliatory” and filed to “scare and punish” her.
As for Spottiswoode’s statement that “[o]n a personal
level, the board should insist that Afiniti and Chishti pay my
father for the stock they seized” which Chishti alleges they did
not take, see Am. Compl. ¶ 300, the immediately preceding
sentence makes it clear that Spottiswoode is referring to the
arbitral action filed by the company against her father, stating
that: “Ms. Spottiswoode urged the company to drop legal
action against her and her father, whom she said had been
targeted in an attempt to force her to erase an arbitration ruling
against Mr. Chishti.” Am. Compl. Ex. F at 4 (emphasis
added). A reasonable reader would not conclude that an
action taken by the company against the stock of an employee
in the course of an arbitral dispute rises to the level of a
comment on Chishti’s character that could make him look
“odious, infamous, or ridiculous.” Weyrich, 235 F.3d at 627
(quoting Best, 484 A.2d at 989). The statement is likewise not
actionable in defamation.
Smith’s post-hearing statements to The Telegraph and
posts on Twitter are similarly not “susceptible of being proved
true or false,” Appellants’ Br. 34 (citation omitted), and
Chishti’s claim was properly dismissed. Chishti’s position
that Smith’s posts on Twitter contain defamatory statements
fail for several reasons. He points, see Appellants’ Br. 34–
35, to Smith’s:
15
(1) November 16, 2021, tweet republishing the video of
Spottiswoode’s testimony and stating, “Harassers know secret
corporate arbitrations will allow them to abuse women without
consequences. Watch this riveting testimony & call your
Representative to vote to end forced arbitration!” Am. Compl.
¶ 116;
(2) November 17, 2021, tweet reposting a video segment
of Spottiswoode’s testimony and stating, “@NYCCHR should
investigate Afiniti like it investigated Fox ‘News.’ Tatiana
[Spottiswoode] filed a retaliation complaint with the City when
Chishti filed a retaliatory arbitration against her father.” Am.
Compl. ¶ 118;
(3) November 18, 2021, tweet reposting an article from
The Guardian and stating, “The judge of the matter – in the
forum chosen by Afiniti – ruled against Chishti after 14 days
of trial. There is no longer a ‘dispute’ about what happened.
It’s been decided.” Am. Compl. ¶¶ 122, 129;
(4) November 19, 2021, tweet stating, “Forced
arbitration enabled [Chishti]. The light of day brought him
down. So proud of my client Tatiana Spottiswoode! Thank
you @RepJerryNadler @RepCheri @HouseJudiciary
@GretchenCarlson @julieroginsky @JusticeDotOrg.” Am.
Compl. ¶ 86;
(5) July 27, 2022, tweet stating, “Hey @AOC
@RepRaskin @RashidaTlaib @CoriBush & @RepMaloney –
a subpoena would trump any NDAs these employees have
signed. It’s how we were able to expose Zia Chishti’s horrific
behavior at the top of Afiniti. Reach out if you have any
questions!” Am. Compl. ¶¶ 94, 131.
Chishti also claims that Smith’s statements to The
Telegraph were defamatory, telling the newspaper that he is a
“sexual predator,” who “beat[]” Spottiswoode “without her
16
consent.” Appellants’ Br. 35. He alleged that Smith told The
Telegraph on November 20, 2021:
Every single sexual predator has this playbook of
saying the harassment was ‘welcome’. When I sued
Roger Ailes on behalf of Gretchen Carlson, Ailes
immediately released a “thank you” note she had
written to somehow prove that she consented to his
harassment. Does Chishti claim that Ms.
Spottiswoode consented to being beaten? If he is
going to violate the confidentiality provisions he
imposed, we will answer him with additional photos
and information.
Am. Compl. ¶ 125. Defamatory too, Chishti alleged, is the
republication of “Spottiswoode’s prepared testimony presented
before Congress,” and “video clips of Spottiswoode’s entire
hearing testimony, which [Chishti alleged] included
allegations of assault with intent to kill, rape, pedophilia, other
criminal conduct” with further unspecified “supporting
comments” that are defamatory. Appellants’ Br. 34, 35–36
(citing Am. Compl. ¶¶ 116, 130, 137 & J.A. 141–42).
There are several responses. Because the court need not
consider contentions made by parties “in the most skeletal
way,” Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir.
2005); Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983),
the court disregards Chishti’s bare and unexplained citations to
allegations in the complaint, Appellants’ Br. 34 (citing Am.
Compl. ¶¶ 84, 86–87, 94, 105(a), 115–20, 122–27, 129–32,
150); id. at 36 (citing Am. Compl. ¶¶ 116, 130, 137).
Also, Smith’s republication of Spottiswoode’s
congressional testimony is a “report about an official
proceeding” protected by the fair reporting privilege and
therefore not actionable. White, 909 F.2d at 527; see
Appellants’ Br. 34, 37. Chishti responds that (1) “Smith’s
17
encapsulating tweets do not qualify for the fair report
privilege” because “they editorialize,” and (2) Smith’s
statements encouraging the readers of her posts to “[w]atch this
riveting testimony” and stating, inter alia, “Its been decided,”
are not “‘fair’ and ‘neutral’” and “impl[y] that the Arbitration
[A]ward conclusively decided the truth of each of
Spottiswoode’s allegations against Chishti.” Reply Br. 20
(citing Am. Compl. ¶¶ 116–17, 119, 122). But these
statements do not contain any “verifiably false statements of
fact,” Weyrich, 235 F.3d at 623, being either a mere invitation
for the readers of her post to view the testimony, or a reference
to the existence and outcome of the arbitration.
Further, when viewed, in context, Smith’s remaining
statements to The Telegraph and posts on Twitter are not
actionable opinions that express or imply verifiably false facts.
A reasonable reader would understand Smith’s statements to
reflect her opinion on public matters: the existence of corporate
forced arbitration of sexual assault claims and her client’s
related testimony before Congress on the subject. In these
comments, Smith draws upon her professional legal experience
with sexual misconduct complaints and charges, expresses
pride for her client for testifying before Congress and her
opinion on the subject of forced arbitration in light of her
client’s testimony, and invites others to act in connection with
Congress’s consideration of the proposed legislation; none
imply unstated defamatory facts. The readers of the
statements are “free to draw his or her own conclusions,”
Farah, 736 F.3d at 539 (citation omitted), about the factual
basis of Smith’s comments; the statements are therefore not
actionable in defamation.
Chishti’s remaining contention that “[t]he District Court
also failed to consider Chishti’s allegations of malice that
overcome any fair comment privilege,” Appellants’ Br. 39, is
conclusory and unsupported by factual allegations in the
amended complaint as well as contrary to matters subject to
18
judicial notice, including the Arbitral Award issued in
Spottiswoode’s favor that was entered in the Congressional
Record. Kaempe, 367 F.3d at 963. And because Chishti has
failed to adequately plead defamation and false light against
Spottiswoode and Smith, the court need not also consider
whether these and other tort claims are barred by the preclusive
effect of the Arbitral Award from pleading the element of
falsity of a defamation claim.
IV.
Count III: Breach of Contract. Chishti contends that the
district court erroneously extended the legislative privilege to
the breach of contract claim based on Spottiswoode’s alleged
violation of Protective Order No. 9 “by disclosing Confidential
Materials from the Arbitration to Congress prior to, during, and
even long after the legislative proceeding in which she
testified.” Appellants’ Br. 39. Chishti also contends that the
breach of contract claims against Spottiswoode and Smith were
erroneously dismissed because the district court
“misinterpreted” Protective Order No. 9. Id. at 44–45.
Further, he contends that the district court erroneously
concluded that he “failed to viably allege that Spottiswoode
and her attorney Zweig breached the Protective Order by
releasing confidential materials.” Id. at 3. But many of the
alleged breaches were not breaches and the legislative privilege
bars the remainder of his claim.
To prevail on a claim of breach of contract, a plaintiff must
establish “(1) a valid contract between the parties; (2) an
obligation or duty arising out of the contract; (3) a breach of
that duty; and (4) damages caused by breach.” Brown v.
Sessoms, 774 F.3d 1016, 1024 (D.C. Cir. 2014) (quoting
Tsintolas Realty Co. v. Mendez, 984 A.2d 181, 187 (D.C.
2009)); see CorpCar Servs. Houston, Ltd. v. Carey Licensing,
Inc., 325 A.3d 1235, 1244–45 (D.C. 2024). Chishti relies on
two protective orders issued by the Arbitrator on the use and
19
disclosure of confidential materials. Protective Order No. 3
(May 9, 2018) permitted Spottiswoode to speak with her
“father and other immediate family members” as well as “law
enforcement and medical professionals” about “anything
related” to the arbitration. Id. at 2. Protective Order No. 9
(Aug. 6, 2018) required: “All materials produced or generated
in this Arbitration . . . are not to be further disclosed other than
in accordance with” its terms. Id. ¶ 2. Confidential materials
“include without limitation materials produced in discovery
(‘Discovery Material’), as well as discovery requests and
responses, pleadings, motions, briefs, testimony, transcripts,
correspondence, orders, and the award.” Id.
Chishti maintains that Spottiswoode and Smith violated
Protective Order No. 9 on at least four occasions: twice by
“present[ing] protected confidential information in her oral
testimony to Congress” and in her “written statement provided
to” the Committee before the hearing, Am. Compl. ¶ 179(b)–
(c), and also by providing a copy of the Arbitral Award to
Chairman Nadler, upon request, after Chishti’s accusations that
Congress did not sufficiently scrutinize the facts underlying
Spottiswoode’s congressional testimony, id. ¶ 179(a), and
when Spottiswoode and Smith “inferabl[y]” disclosed
“material protected under the Protective Order to procure a
subpoena from Congress,” id. ¶ 179(d). A fifth violation of
“the protective order” was allegedly committed by her attorney
Zweig in “disclosing the existence and contents of the Award
in the arbitration to Spottiswoode’s father” and his attorney.
Id. ¶ 197.
Four of the alleged five breaches of contract claims fail at
the outset. Protective Order No. 9 “does not protect against
the disclosure of ‘confidential information’; it only protects
against the disclosure of [defined] ‘Confidential Material,’”
Mem. Op. 31 (citing paragraph 2). Spottiswoode did not
breach Protective Order No. 9 by disclosing the existence of
and facts underlying the Arbitral Award. The alleged breach
20
based on an “infer[ence],” Am. Compl. ¶ 179(d), that
Spottiswoode and Smith provided unspecified confidential
information to Congress also fails because the inference is
“unsupported by the facts set out in the complaint,” Kowal v.
MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
Likewise, the breach claim against Smith fails because Chishti
never alleged Smith was a party to Protective Order No. 9 or
that she entered into a contract for his benefit, unlike Zweig
who allegedly negotiated the protective orders. Mem. Op. 24
(citing Needham v. Hamilton, 459 A.2d 1060, 1062 (D.C.
1983)). The breach of contract claim against Spottiswoode’s
attorney Zweig fails because Protective Order No. 3 permitted
Spottiswoode (and by extension her agents) to share
information about the existence and contents of the arbitration
with her father. Id. at 2. Chishti’s position that Protective
Order No. 9 “effectively superseded” Protective Order No. 3,
Appellants’ Br. 51, lacks basis in the text of Protective Order
No. 9.
Left is Chishti’s breach of contract claim based on
Spottiswoode’s provision of a copy of the Arbitral Award to
the House Judiciary Committee Chairman in response to his
request. See Am. Compl. ¶¶ 179(a). This request came
about as the result of Chishti’s letter of December 5, 2022,
almost a year after the congressional hearing, to a Member of
the Committee advising that: (1) he had filed suit against
Spottiswoode for the “extraordinary . . . false claims” in her
November 16, 2021, testimony, including that he “raped her
and . . . attacked her with intent to kill,” and (2) he was certain
the Member “ha[s] not reviewed the underlying evidence and
voluminous communications between Ms. Spottiswoode and
[him] that belie her narrative.” Chishti Ltr. at 1 (Dec. 5,
2022), Am. Compl. Ex. J. Asserting that Spottiswoode’s
“personal claims” are not “real,” Chishti offered to supply
“facts” that “may prove helpful to . . . advancing legislation
that redresses the burdens that women have historically faced.”
Id. On December 17, Chairman Nadler wrote to
21
Spottiswoode, in care of her attorney Smith, that Congress had
passed the Act in part due to her testimony and that Chishti had
accused the Committee of not reviewing the underlying
evidence relating to Spottiswoode’s claims. “To ensure
maximum accuracy in the congressional record and to inform
further the Committee’s ongoing work against workplace
sexual violence and sexual harassment,” Chairman Nadler
requested “a copy of the arbitrator’s 2019 final ruling.”
Nadler Ltr. at 1 (Dec. 17, 2022), Ex. I; Am. Compl. ¶ 95.
Spottiswoode provided a copy that was placed in the
Congressional Record. Am. Compl. ¶ 96.
Chishti contends that the legislative privilege does not bar
his breach of contract claim because this court has applied the
privilege “only to defamation claims for statements solicited
for and during a legislative hearing.” Appellants’ Br. 39
(emphasis omitted). But Chishti’s reliance on Langeman v.
Garland, 88 F.4th 289, 296–97 (D.C. Cir. 2023), Webster I,
731 F.2d at 5, and Webster II, 790 F.2d at 159 & n.2, is
misplaced; in those cases the court had no occasion to consider
the scope of the privilege beyond claims of defamation. His
reliance on non-binding district court opinions also does not
advance his position. Appellants’ Br. 40–41. The D.C.
Court of Appeals has not decided the question but traditionally
looks to the Restatement (Second) of Torts in considering
questions of first impression under District of Columbia law,
including in the defamation context, see, e.g., Competitive
Enter. Inst., 150 A.3d at 1243, 1250, Oparaugo, 884 A.2d at
71, 79, Phillips, 424 A.2d at 88, Fisher, 212 A.2d at 338; cf.
Whiteru v. Wash. Metro. Area Transit Auth., 346 A.3d 1188,
1195 (D.C. 2025). Neither party has requested certification of
the question to the D.C. Court of Appeals pursuant to D.C.
Code § 11–723(a) (1986). Resolution of the question as
would the D.C. Court of Appeals would be straightforward: by
applying the Restatement (Second) of Torts as would the D.C.
Court of Appeals provides a clear “discernible path for the
court to follow.” Metz v. BAE Sys. Tech. Sols. & Servs. Inc.,
22
774 F.3d 18, 23 (D.C. Cir. 2014) (quoting United States v. Old
Dominion Boat Club, 630 F.3d 1039, 1047 (D.C. Cir. 2011)).
In fact, this court has done so before in a similar context in
Webster I and Webster II.
Therefore, in interpreting the scope of the legislative
privilege under District of Columbia law, the court looks to
Section 590A of the Restatement (Second) of Torts and may
look to “Maryland law” as “the most authoritative body of law
other than” the precedent of the District of Columbia Court of
Appeals. In re C.A.P., 633 A.2d 787, 790 (D.C. 1993); see
Solid Rock Church, Disciples of Christ v. Friendship Pub.
Charter Sch., Inc., 925 A.2d 554, 561 (D.C. 2007). Section
590A states:
A witness is absolutely privileged to publish
defamatory matter as part of a legislative proceeding
in which he is testifying or in communications
preliminary to the proceeding, if the matter has some
relation to the proceeding.
Restatement (Second) of Torts § 590A. Comment a explains
that “[t]he absolute privilege of witnesses in legislative
hearings and other legislative proceedings is similar in all
respects to that of witnesses in judicial proceedings, as stated
in § 588,” recognizing “that the same interests justifying
immunity for statements made in judicial proceedings also
underlie immunity for statements made in connection with
legislative proceedings,” Webster I, 731 F.2d at 4 n.7 (citing
Restatement (Second) of Torts § 590A, cmt. a). Thus, “cases
discussing immunity in the judicial context may help guide [the
court’s] examination of immunity in the legislative context.”
Id. Elaborating on the common interests behind immunities
granted in judicial and legislative proceedings, this court
stated:
This rule of privilege is a compromise between two
23
important rights, the one being the right of an
individual to be free from attack by malicious words
and the other the right public and private of a thorough
investigation when necessary by some tribunal before
which the witnesses may speak without fear. The
reason for the rule is applicable as much to a hearing
before a committee of the Legislature as to a court of
justice.
Id. (quoting Sheppard v. Bryant, 78 N.E. 394, 400 (Mass.
1906)). In regard to “the purpose of granting immunity to
communications addressed to a legislative body,” this court
looked to the Maryland Court of Special Appeals in stating:
In order for a democratic government to govern
democratically, it is necessary that an atmosphere be
created whereby facts may be freely presented to the
governing legislative body. Without such a free-
speaking environment, individuals might be
discouraged from addressing their government.
Id. at 4 (quoting Sherrard v. Hull, 456 A.2d 59, 62 (Md. 1983),
aff’d, 460 A.2d 601 (Md. 1983), overruled on other grounds
by Miner v. Novotny, 498 A.2d 269 (Md. 1985)).
The parties point to out-of-circuit precedent examining the
application of the litigation privilege to breach of contract
claims. Appellants’ Br. 42; Appellees’ Br. 45–46. Those
opinions do not provide hard-and-fast rules. Rather, the
courts applying state law have concluded that “the absolute
litigation privilege is applicable to breach of contract actions
. . . where immunity from liability is consistent with the
purpose of the privilege.” Rain v. Rolls-Royce Corp., 626 F.3d
372, 377 (7th Cir. 2010) (applying Indiana law); see, e.g., 3500
Sepulveda, LLC v. Macy’s W. Stores, 980 F.3d 1317, 1327–28
(9th Cir. 2020) (applying California law), Sun Life Assurance
Co. of Can. v. Imperial Premium Fin., LLC, 904 F.3d 1197,
24
1219–20 (11th Cir. 2018) (applying Florida law), Kelly v.
Golden, 352 F.3d 344, 350–51 (8th Cir. 2004) (applying
Missouri law), abrogated in part on other grounds by Morgan
v. Sundance, Inc., 596 U.S. 411, 419 (2022); see Bio/Basics
Int’l Corp. v. Ortho Pharm. Corp., 545 F. Supp. 1106, 1115–
1116 (S.D.N.Y. 1982) (applying New York law and
Restatement (Second) of Torts); Crutcher v.
Oncology/Hematology Care, Inc., 201 N.E.3d 446, 463 (Ohio
1st Dist. Ct. App. 2022) (applying Ohio law). Consistent with
this approach, the Court of Appeals of Maryland reasoned “that
the litigation privilege can apply as a defense to claims
sounding in contract” because “the privilege would be
‘valueless’ or ‘meaningless’ if the opposing party could bar
application of the privilege just by drafting the claim with a
non-tort label” while “ignor[ing] the possibility that the alleged
harm derives from tortious conduct,” thereby frustrating the
goals of the privilege of “due administration of justice and free
expression by participants in judicial proceedings.” O’Brien
& Gere Eng’rs, Inc. v. City of Salisbury, 135 A.3d 473, 485
(Md. 2016) (citations omitted); see Webster I, 731 F.2d at 4.
There, the litigation privilege barred an engineering company
from suing the City of Salisbury for breach of a non-
disparagement clause in a settlement agreement predicated on
in-court statements of the City’s counsel where “the facts
material to” the breach of contract claim “were interrelated”
with the facts for the alleged defamatory statements of the
City’s counsel in court. O’Brien & Gere Eng’rs, 135 A.3d at
490–91.
It follows, therefore, that the district court properly applied
the legislative privilege to Chishti’s breach of contract claim.
Doing so is consistent with the purpose of the privilege for
witnesses testifying in legislative proceedings of creating “an
atmosphere . . . whereby facts may be freely presented to the
governing legislative body” and avoiding discouraging
individuals “from addressing their government.” Webster I,
731 F.2d at 4 (quoting Sherrard, 456 A.2d at 62).
25
Spottiswoode’s provision of the Arbitral Award to Chairman
Nadler was prompted by Chishti’s accusations that a Member
of the House Judiciary Committee had not “reviewed the
underlying evidence and voluminous communications”
between Spottiswoode and himself “that belie her narrative.”
Chishti Ltr. at 1. Implicit in Chishti’s letter and apparent in
the Amended Complaint is that Spottiswoode’s provision of
the Arbitral Award to Congress and her congressional
testimony are interrelated because the testimony is based on
“the existence and content of the [Arbitral] Award,” Am.
Compl. ¶ 183, see id. ¶¶ 182–85, 193. Chairman Nadler
requested a copy of the arbitrator’s 2019 final ruling “[t]o
ensure maximum accuracy in the congressional record . . . .”
Nadler Ltr. at 1.
Under the circumstances, the legislative privilege for
witnesses extends to this breach of contract claim. Without it,
Spottiswoode would either be unable to defend herself against
Chishti’s accusations in his letter to Congress that her protected
testimony was false, or face being subjected to a breach of
contract lawsuit based on the same defamatory harms –
Chishti’s workplace sexual misconduct and forced arbitration
of these claims under Afiniti’s company policy – that were
precluded by the application of the privilege to her testimony.
Failure to apply the privilege in these circumstances would
“discourage[]” potential witnesses like Spottiswoode “from
addressing their government” in the first place, hollowing out
the privilege. Webster I, 731 F.2d at 4 (citation omitted).
In Chishti’s view, “[t]he U.S. Supreme Court and other
federal circuit courts have made explicit that even the litigation
privilege is limited to immunizing only ‘defamatory
statements.’” Appellants’ Br. 42 (citation omitted). Not so.
The Eleventh and Ninth Circuits declined to extend the
litigation privilege under the applicable state law in Sun Life
Assurance Co. of Canada v. Imperial Premium Fin., LLC, 904
F.3d 1197, 1219 (11th Cir. 2018) and 3500 Sepulveda, LLC v.
26
Macy’s W. Stores, 980 F.3d 1317, 1327 (9th Cir. 2020),
respectively, but, unlike in the instant case, in those cases,
doing so would not have been consistent with the purposes of
the privilege. Chishti’s reliance on Tower v. Glover, 467 U.S.
914 (1984), for the proposition that “the litigation privilege is
limited to immunizing only defamatory statements,”
Appellants’ Br. 42, is misplaced because the Supreme Court
did not address whether the common law litigation privilege
extends to breach of contract claims, holding only that state
public defenders did not enjoy common law immunity from
liability under 42 U.S.C. § 1983 for “intentional misconduct”
based on immunities accorded to historical analogues of public
defenders. 467 U.S. at 920–23.
Because Chishti’s breach of contract claim based on
Spottiswoode’s providing of the Arbitral Award to Chairman
Nadler fails as a matter of law, the court need not consider
whether Chishti failed to state a claim for breach of Protective
Order No. 9. See Mem. Op. 30–34.
V.
Counts IV-VIII: Other related torts. Chishti and his wife
plead three causes of action based in tort (tortious interference,
abuse of process, intentional infliction of emotional distress)
and two causes of action predicated on underlying tort actions
(conspiracy and loss of consortium). These related tort claims
are part of the alleged defamatory “smear campaign
perpetrated by the Defendants against the Plaintiffs,”
consisting of “falsely accusing Chishti of sexual misconduct
and other offensive acts.” Am. Compl. ¶¶ 1, 2.
“[P]laintiffs complaining about a defamatory statement
cannot end-run the requirements for a defamation claim by
pleading” the claims as other causes of action. Teltschik v.
Williams & Jensen, PLLC, 748 F.3d 1285, 1288 (D.C. Cir.
2014); Couch v. Verizon Commc’ns Inc., 105 F.4th 425, 436
27
(D.C. Cir. 2024); Farah, 736 F.3d at 540. Because the alleged
torts are based on the defamatory conduct allegedly perpetrated
by Spottiswoode and her attorneys, they are duplicative of the
defamation (and false light) claims, and were properly
dismissed. The claims of conspiracy and loss of consortium
also fail because they are unsupported by underlying tort
claims. Hill v. Medlantic Health Care Grp., 933 A.2d 314,
334 (D.C. 2007); Massengale v. Pitts, 737 A.2d 1029, 1033
(D.C. 1999).
Finally, appellants’ contention that the district court erred
in dismissing the amended complaint with prejudice,
Appellants’ Br. 62, is forfeit. City of Harper Woods, 589 F.3d
at 1304. They “never moved to amend [the] complaint in the
District Court,” id., nor proffered “particular grounds on which
[an] amendment is sought,” United States ex rel. Williams v.
Martin-Baker Aircraft Co., 389 F.3d 1251, 1259 (D.C. Cir.
2004) (citation omitted).
* * * *
Accordingly, the court affirms the order dismissing the
amended complaint for failure to state a claim pursuant to Rule
12(b)(6) and the order dismissing the case with prejudice.