Novecon Ltd. v. Bulgarian-American Enterprise Fund

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 1, 1998 Decided September 3, 1999

No. 97-7178

Novecon Ltd., Novecon Management Company,

and Richard W. Rahn,

Appellants

v.

Bulgarian-American Enterprise Fund, Frank L. Bauer,

and Nancy L. Schiller,

Appellees/Cross-Appellant

Consolidated with

97-7182

Appeals from the United States District Court

for the District of Columbia

(No. 95cv01178)

Douglas B. McFadden argued the cause for appellants.

With him on the briefs was John M. Shoreman.

Anson M. Keller argued the cause for appellees/cross-

appellant. With him on the briefs was Gary H. Baise.

Before: Wald, Silberman and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge: The plaintiffs brought this diver-

sity action charging breach of contract and defamation in

connection with a failed real estate venture in Sofia, Bulgaria.

The district court granted summary judgment in favor of

defendants on both the contract and defamation claims. For

the reasons stated below, we affirm the judgment of the

district court.

I

Plaintiffs Novecon, Ltd. and Novecon Management Compa-

ny ("Novecon") are private firms engaged in developing busi-

ness projects in Bulgaria, primarily through the use of joint

ventures. Plaintiff Richard Rahn is president of both compa-

nies; Ronald Utt is their managing director. Defendant

Bulgarian-American Enterprise Fund (BAEF or "the Fund")

is a not-for-profit corporation established pursuant to the

Support for East European Democracy Act, 22 U.S.C.

ss 5402, 5421. It promotes private sector development and

entrepreneurship in Bulgaria through, among other things,

grants, loans, and equity investments. Defendant Frank

Bauer is the Fund's president and defendant Nancy Schiller

is the managing director of its Chicago office.

A

In 1991, Novecon formed a joint venture with a Bulgarian

company to develop a residential and commercial building

complex in Sofia, on land owned by the Batsov family.1 In

__________

1 Novecon formed the joint venture, known as Southern Park

Development, with Mirpex Co., a Bulgarian limited liability compa-

ny. Southern Park Development has assigned its rights in this

November 1992, it began negotiating with the Batsovs to

transfer title to the land in exchange for a percentage of the

project's finished units. Novecon also contacted BAEF and

proposed that the Fund provide a construction loan to finance

the development of the project. In March 1993, BAEF sent

Novecon a letter indicating that the Fund's board of directors

had "authorized continued conversations surrounding several

real estate projects," including Novecon's. Joint Appendix

("J.A.") 144.

Between May 20 and June 3, 1993, BAEF and Novecon

exchanged a series of four written communications concerning

details of the project. The correspondence described the

extent of Novecon's responsibilities in connection with the

project, set forth a series of project milestones, and described

the payments that Novecon would receive upon the comple-

tion of each milestone. The correspondence contemplated

that the Batsov family would have a 26 percent stake in the

building complex. Novecon contends that these four docu-

ments created a contract which bound BAEF to provide

financing for the project.

The first letter, from Nancy Schiller of BAEF to Ronald

Utt of Novecon, was written on May 20, 1993. J.A. 145. It

stated that the Fund was "prepared to move forward on the

terms outlined in this letter." The letter then described a

"narrower oversight role" for Novecon than previously antici-

pated, listed a series of responsibilities that BAEF contem-

plated for Novecon, and noted that "this list is not exhaustive

[but] should provide an overview of the role that [Novecon]

will have." Schiller stated that "[c]ontingent on the signing

of a definitive agreement," the Fund was willing to compen-

sate Novecon with the sum of $200,000, "with payment based

on timing and project landmarks." The first installment, of

$25,000, would be made "[u]pon completion of: a) Contract

signing, b) Delivery of unencumbered land title for Phase I

and II, c) Transfer of the land title, [and] d) Securing and

delivery of the zoning amendment." Schiller further stated

__________

litigation to Novecon, Utt Aff. p 76 (Joint Appendix ("J.A.") 76), and

we refer to the joint venture as "Novecon" for ease of reference.

that she and Mr. Batsov had agreed that the family would

receive 26 percent of the building's apartments. She noted

that "this document is fairly comprehensive, but undoubtedly

there will be some need to clarify certain points now or as we

proceed." Finally, Schiller said that the offer made in the

letter would expire on June 4, 1993. Id.

On June 1, 1993, Utt sent Schiller a telefax reflecting their

telephone conversation of the previous Friday. J.A. 148-49.

The fax noted that Schiller had asked Novecon to revise the

milestones "to advance the project and conform to Bulgarian

law." Novecon's fax contained the revised milestones, as well

as a series of revised fees, which Utt said he had "redone ...

to better reflect the degree of difficulty in accomplishing the

required tasks." He closed by stating that he "looked for-

ward to [BAEF's] response." Id. at 149.

On June 3, 1993, Schiller sent Utt a revised fee structure

which, she said, would be included "in our request to the

Fund's Board for final approval" of the project. J.A. 150.

Her letter stated, however, that "[o]ne important new issue

has come up." Although BAEF had previously been told that

Mr. Batsov represented all the heirs to the property, Ms.

Lilyana Batsova and two relatives had just notified BAEF

that they had an ownership interest and that Mr. Batsov did

not represent them. "[I]f this is the case," Schiller said, "I

am sure you realize that the BAEF will not pursue this

investment." In light of these developments, Schiller said

that BAEF "will consent to extending our negotiations until

June 15, 1993 by which time we will expect certified documen-

tation of the sign off of all heirs." If evidence is not received

by that date, she said, "BAEF will rescind its offer to

negotiate and terminate its discussions with [Novecon]." Id.

The last of the four communications was a two-paragraph

telefax sent by Utt to Schiller on June 3, 1993. J.A. 152.

"On behalf of [Novecon]," he wrote, "I accept the terms of the

Fund's 20 May 1993 offer and the revised fee schedule. I

also understand that your offer is contingent upon a resolu-

tion of any and all outstanding uncertainties regarding owner-

ship of [the building] sites, and accept the responsibility to

resolve the uncertainties to the Fund's satisfaction by the 15

June 1993 deadline." Novecon contends that by accepting

the terms of the Fund's May 20th letter and June 3rd revised

fee schedule, this telefax "creat[ed] a binding contract." Am.

Compl. p 17.

On June 14, 1993, Schiller telephoned Utt and requested

that he renegotiate the arrangement with the Batsov family

to reduce their share in the project from 26 percent to 12

percent. To give Novecon time to negotiate, BAEF extended

its deadline to June 28. On that date, however, Novecon

advised BAEF that the Batsovs had refused to reduce their

share. Novecon sought BAEF's "guidance as to how ... to

proceed," and offered to "extend the period of time during

which we will not solicit other investors while you attempt to

work this out." J.A. 157-59.

Finally, on November 2, 1993, BAEF wrote Novecon that

"since our agreement to negotiate the project expired on June

28, 1993, we have decided to terminate negotiations." J.A.

160. The letter noted that the local court in Sofia had

delayed judgment on Lilyana Batsova's property claim, that

BAEF had not received a contract signed by the Batsov

family agreeing to turn over the property, and that numerous

zoning issues regarding the land remained unresolved. "Ba-

sically," BAEF wrote, "the project has proven unfeasible."

Id.

In June 1995, Novecon (and Rahn) filed suit in the United

States District Court for the District of Columbia, asserting

jurisdiction based on the diversity of the parties' citizenship.

The complaint alleged three contract-related claims: breach

of contract, promissory estoppel, and quantum meruit. It

contended that by accepting the terms of the Fund's May

20th letter and June 3rd revised fee schedule, Novecon's June

3rd telefax created a binding contract, and that the Fund's

insistence on renegotiating the Batsov family's share breach-

ed the contract and caused the project to collapse.

B

The second phase of the case, culminating in the filing of an

amended complaint for defamation, began soon after Novecon

filed its original contract action. In October of 1995, BAEF

received a two-page document which, it was told, Richard

Rahn of Novecon had given to the American Ambassador to

Bulgaria. BAEF construed the document as a draft for

publication. Bauer Aff. p 77 (J.A. 464). The document

generally attacked BAEF, and contended that "[a]llegations

of conflict of interest and theft of project ideas by individuals

close to the senior staff have been made." J.A. 525-26. It

then proffered the "example of ... the Novecon company."

According to the document, "[a]fter signing the contract with

Novecon," BAEF "proceeded to change the project so that

Novecon with its partners could no longer obtain the neces-

sary agreements and approvals in Bulgaria ... [and] then

refused to compensate Novecon for losing the project."

Moreover, it said, "Dr. Rahn has been told that the BAEF

strategy is to bleed Novecon with legal bills because the

BAEF's legal costs are paid by the taxpayers." The docu-

ment also noted that "Rahn has written members of Congress

requesting hearings and an investigation" of the Fund. Id. at

526.

In November of 1995, Rahn did send letters to members of

Congress, on Novecon stationery. J.A. 529-30. In those

letters, he wrote that "[t]here is considerable evidence that

[BAEF] has abused its fiduciary responsibility with taxpayer

money ... ; does not have competent management; has

conducted its activities in such a way as to give the appear-

ance, if not the fact, of a conflict of interest ... ; has acted in

a manner damaging to legitimate U.S. businesses; and has

damaged U.S. Bulgarian relations." Rahn offered the Nove-

con case as an example, stating, in words paralleling the

October draft discussed above, that "[a]fter signing the con-

tract with Novecon ... the BAEF then proceeded to change

the project so dramatically from the approved plans that the

necessary agreements and approvals in Bulgaria could no

longer be obtained." BAEF then "refused to do the appro-

priate and honorable thing--compensate Novecon" for its

losses. The letter further contended that BAEF's "strategy

is to bleed Novecon with legal bills because the BAEF's legal

costs are paid by the taxpayers." And it specifically charged

that "just last week the BAEF brought four lawyers ... to a

hearing in Washington in another unsuccessful attempt on

their part to have our case dismissed on technicalities." In

closing, Rahn accused BAEF of "incompetence and arro-

gance" and "mismanagement or worse," and urged a congres-

sional investigation. Id.

On January 5-6, 1996, the Wall Street Journal Europe

published an op-ed piece by an author named Greg Rushford,

entitled "AID's Boondoggle in Bulgaria." J.A. 291. The

Rushford piece made several of the charges contained in the

October draft and the November Rahn letter. It accused

BAEF of "arrogance" and "shoddy performance," stemming

"largely from a management cadre who spend most of their

time drawing big salaries in comfortable offices." Four para-

graphs of the article discussed the dispute between BAEF

and Novecon. It noted that "Mr. Rahn, a respected former

chief economist at the U.S. Chamber of Commerce, accuses

the BAEF of breaching a contract to fund a residential and

commercial real estate project in Sofia ... [by] constantly

trying to alter the deal's terms until they caused the project

to collapse." The article quoted Ronald Utt, Novecon's man-

aging director, as stating that "[w]e could have gotten a

perfectly suitable Bulgarian architect for $15,000, but BAEF

decided they wanted a Chicago architect," and that BAEF

was "in over their heads." It charged that "armed with tax

dollars, [BAEF was] busy employing petty litigation tactics

against Novecon." And it specifically charged--as had the

Rahn letter--that BAEF sent "four high-priced lawyers into

federal court to fight over dubious claims about standing and

venue." Id.

On January 15, 1996, the Bulgarian newspaper 24 Hours

ran two stories related to the BAEF-Novecon dispute. See

J.A. 785-89 (translations). The first discussed the Rushford

article's analysis of BAEF's financial excesses and poor per-

formance. In that article, the reporter noted that BAEF

"became notorious for the big salaries of the employees, the

fancy offices in Chicago and the $200,000 that the 'Novecon'

owner, Richard Rahn, lost in a deal with the Fund." The

second article focused specifically on the Novecon litigation as

reported by Rushford. It repeated Rahn's claim that BAEF

frustrated the parties' agreement by repeatedly trying to

alter the terms of the project. It also repeated Utt's conten-

tion that BAEF had insisted that the architect be American.

The article concluded by noting that Rushford believed it was

not worth hiring expensive lawyers for a $200,000 case, and

that BAEF's strategy was to cause delays and large court

expenses. Id.

Immediately after receiving the op-ed piece, BAEF sent

the Wall Street Journal Europe a letter responding to Rush-

ford's allegations. The Journal published the response as a

letter to the editor on January 16, 1996. J.A. 796. BAEF's

letter set forth several assertedly factual inaccuracies about

BAEF contained in the Rushford article. Its sole reference

to Rahn and Novecon appeared in the final two sentences:

"Richard Rahn, whose lawsuit against us receives excessive

attention in the article, is entitled to and will have his day in

court. It is unfortunate that the Wall Street Journal Europe

has been used as a forum to buttress an otherwise meritless

complaint." Id.

Thereafter, on January 18, 1996, BAEF sent a package of

materials to 570 individuals and organizations in the United

States and Bulgaria. The package sent to Americans con-

tained the Rushford article and BAEF's letter to the editor;

the Bulgarians received a copy of the 24 Hours article as well.

The cover letter, which is the focus of Novecon's defamation

claims, stated in relevant part:

We find it odd that Mr. Rushford would choose to write

about the Bulgarian-American Enterprise Fund, and

then devote nearly one-third of his opinion piece to a

lawsuit by a Dr. Richard Rahn on behalf of a Washing-

ton, D.C. firm called Novecon. Dr. Rahn, through Nove-

con, seeks to extort $200,000 of U.S. taxpayer money

from the BAEF as a fee for a real estate project that the

BAEF rejected because it turned out to be a veritable

"Brooklyn Bridge" of misrepresentation. Among other

problems, Novecon's client did not own the land on which

the project was to be developed--despite representations

by Novecon to the contrary. Since there was nothing to

sell, we did not buy their "Brooklyn Bridge."

J.A. 169.2

Following the circulation of the BAEF letter, Novecon and

Rahn amended their complaint to add a charge of defamation,

focusing particularly on the allegations that they had sought

to "extort $200,000 of taxpayer money," and that the project

was a "veritable Brooklyn Bridge of misrepresentations."

Am. Compl. p 33 (J.A. 359); see Rahn Reply Aff. p p A, B

(J.A. 295).

C

The district court issued three opinions which together

granted summary judgment against Novecon and Rahn on all

counts. In the first opinion, the district court granted sum-

mary judgment on the contract claims. Novecon v. BAEF

("Novecon I"), 967 F. Supp. 1382 (D.D.C. 1997). The court

held that the letters exchanged by Novecon and BAEF were

insufficient to allow a reasonable trier of fact to find a

contract between the parties, and rejected Novecon's alterna-

tive argument that it was entitled to damages on theories of

promissory estoppel or quantum meruit. The court conclud-

ed: "[T]he record is clear that BAEF extended only an 'offer

to negotiate' which Novecon 'accepted' ... [and which] consti-

tutes nothing more than an agreement to continue negotia-

tions.... Novecon cannot enforce any binding, legal obli-

gations against BAEF." Id. at 1389.

In its first and second opinions, the district court also

granted summary judgment against plaintiffs' defamation

claim, for two reasons. The court held that BAEF's letters

were entitled to First Amendment protection because plain-

tiffs were "limited-purpose public figures" and had failed to

__________

2 According to BAEF, the letters delivered to the American and

Bulgarian recipients were largely identical, with the exception of

the Brooklyn Bridge reference which was omitted from the letters

to the Bulgarians because it would not have been understood. See

J.A. 795.

show defendants had acted with the kind of malice necessary

to overcome the constitutional privilege. Novecon v.

Bulgarian-American Enterprise Fund ("Novecon II"), 977

F. Supp. 45, 49 (D.D.C. 1997); Novecon I, 967 F. Supp. at

1390 (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 351

(1974)).3 The court also held that BAEF's letters were

protected by the common-law privilege of self-defense, and

that BAEF had failed to show defendants had acted with the

kind of malice necessary to overcome that privilege. Novecon

II, 977 F. Supp. at 49-52. Finally, in its third opinion, the

court rejected plaintiffs' motion under Fed. R. Civ. P. 56(f) to

deny or stay summary judgment in order to permit Novecon

to obtain additional discovery. Novecon v. Bulgarian-

American Enterprise Fund ("Novecon III"), 977 F. Supp. 52,

53-54 (D.D.C. 1997).

II

We begin with plaintiffs' contract-related claims. We re-

view the district court's grant of summary judgment de novo.

Hunter-Boykin v. George Washington Univ., 132 F.3d 77, 79

(D.C. Cir. 1998). We may uphold that grant only if "no

reasonable fact-finder could conclude that an enforceable"

contract existed between the parties. Jack Baker, Inc. v.

Office Space Dev. Corp., 664 A.2d 1236, 1241 (D.C. 1995); see

Ekedahl v. COREStaff, Inc., No. 98-7119, 1999 WL 550970

(D.C. Cir. July 30, 1999), ___ F.3d ___, at *2-3.

A

Under the law of the District of Columbia, "for an enforce-

able contract to exist there must be both (1) agreement as to

all material terms; and (2) intention of the parties to be

bound." Jack Baker, 664 A.2d at 1238. The party asserting

the existence of an enforceable contract bears the burden of

proof on the issue of contract formation. See id.; Ekedahl,

1999 WL 550970 at *3. "Where the parties contemplate a

__________

3 In Novecon I the court found only Rahn to be a limited-purpose

public figure. See 967 F. Supp. at 1390-91. In Novecon II it found

Novecon to be one as well. See 977 F. Supp. at 49.

subsequent written contract, this burden is particularly oner-

ous." Jack Baker, 664 A.2d at 1238.

Plaintiffs contend that the four corners of the contract

between Novecon and BAEF may be found in the four

communications the parties exchanged between May 20th and

June 3, 1993. Novecon Br. at 18. Specifically, Novecon

contends that by accepting the terms of the Fund's May 20th

letter and June 3rd revised fee schedule, Novecon's June 3rd

telefax "creat[ed] a binding contract." Am. Compl. p 17 (J.A.

354); Utt Aff. p 23 (J.A. 76).4 Having searched those four

corners, we do not find a contract within them.

Novecon's first letter, dated May 20, 1993, stated that the

terms it contained provided an "overview" but were not

"exhaustive," and that "undoubtedly there will be some need

to clarify certain points now or as we proceed." J.A. 146-47.

The first payment would be made, the letter said, only

"[u]pon completion of: a) Contract signing, b) Delivery of

unencumbered land title for Phase I and II, c) Transfer of the

land title, [and] d) Securing and delivery of the zoning

amendment." The Fund's willingness to compensate Nove-

con, it stressed, was "[c]ontingent on the signing of a defini-

tive agreement." Id.

BAEF's second letter, dated June 3, 1993, was no more

definitive. See J.A. 150-51. First, it said that a "revised fee

structure" would be "include[d] in our request to the Fund's

Board for final approval," thus indicating that there was at

least one more stage required before BAEF could enter into

a contract. Second, BAEF made clear that its offer would be

rescinded unless it received "certified documentation of the

sign off of all [Batsov] heirs by June 15, 1993." Finally, and

most significant, BAEF expressly characterized its offer as

an "offer to negotiate." Id.

In light of the plain language of these letters, and BAEF's

own characterization of its offer, we agree with the district

__________

4 The remaining communication, the June 1st fax from Novecon

to BAEF, proposed a revision of the fee schedule originally con-

tained in the Fund's May 20th letter. J.A. 148-49.

court's conclusion that "BAEF extended only an 'offer to

negotiate,' " and that when Novecon accepted that offer on

June 3rd it created "nothing more than an agreement to

continue negotiations." 967 F. Supp. at 1389; see generally

Bender v. Design Store Corp., 404 A.2d 194, 197 (D.C. 1979)

("All that was promised was that appellee would bargain in

good faith."). The letters made clear that they did not

contain all terms material to an agreement, and that those

terms would be contained in a "definitive agreement" to be

finalized at the "contract signing" expressly contemplated in

the May 20th letter. See 967 F. Supp. at 1387. In the

District of Columbia, "parties will not be bound to a prelimi-

nary agreement unless the evidence presented clearly indi-

cates that they intended to be bound at that point." Jack

Baker, 664 A.2d at 1239. There is no such evidence here.

There are other significant indications of nonfinality as

well. One is the June 3rd letter's reference to the fact that

the terms would have to be submitted to the Board for

"final approval." See Jack Baker, 664 A.2d at 1237, 1241

(describing requirement that Philippine embassy construc-

tion contract "will be subject to the approval of the Philip-

pine Department of Foreign Affairs" as "striking" indication

of nonfinality). A second is that this was the sort of com-

plex, expensive, multi-stage transaction in which a subse-

quent formal contract would ordinarily be expected. See id.

at 1240-41; see also R.G. Group, Inc. v. Horn & Hardart

Co., 751 F.2d 69, 77 (2d Cir. 1984).

Finally, BAEF's letter made clear that there were a num-

ber of key contingencies that would have to be satisfied

before the agreement could be concluded. First among these

was the transmission of "certified documentation of the sign

off of all [Batsov] heirs." J.A. 151. Indeed, in accepting "the

terms of the Fund's" offer on June 3rd, Novecon acknowl-

edged its understanding that agreement was "contingent

upon a resolution of any and all outstanding uncertainties

regarding ownership of [the building] sites," and "accept[ed]

the responsibility to resolve the uncertainties to the Fund's

satisfaction by the 15 June 1993 deadline." Id. at 152. Yet,

as Novecon notes in its brief, those uncertainties were never

resolved. Novecon Br. at 24.

In sum, we agree with the district court that no reasonable

trier of fact could conclude that the exchange of communica-

tions between Novecon and BAEF constituted an agreement

by both parties to be bound by their terms. Rather, the

letters were "merely a part of the preliminary negotiations

looking toward the execution of a contract in writing and by

[their] own terms negate[d] the idea that [they] were intend-

ed as an offer which thereafter could be accepted ... without

the necessity of a formal written document covering all the

terms." Simplicio v. National Scientific Personnel Bureau,

Inc., 180 A.2d 500, 502 (D.C. 1962).

B

As an alternative to its breach of contract claim, Novecon

contends that it is entitled to relief on either of two related

theories: promissory estoppel or quantum meruit. The core

requirements of those theories, however, are absent here.

Novecon argues that it "reasonably relied to [its] detriment

on the Fund's promises to provide" funding for the project,

and that in reliance on those promises it "expended consider-

able amounts of time and money." Am. Compl. p 42. Al-

though "for purposes of estoppel, a promise need not be as

specific and definite as a contract, ... in the final analysis

there must be a promise"--and it must be more than merely

a promise to "bargain in good faith." Bender, 404 A.2d at

196-97. For the reasons stated above, we can find no greater

promise here.

Novecon also contends that it is entitled to recover on a

theory of quantum meruit or unjust enrichment for the

benefit it conferred on the Fund by "perform[ing] valuable

services for the Fund in connection with efforts to develop"

the project. Am. Compl. p 45. To prevail on such a claim, a

party "must show that the services [it performed] were

beneficial to the recipient." Fred Ezra Co. v. Pedas, 682 A.2d

173, 176 (D.C. 1996); In re Rich, 337 A.2d 764, 766 (D.C.

1975) ("The essential elements for recovery ... [include]

valuable services being rendered ... for the person sought to

be charged."). Novecon alleges that "[t]he benefit[s] derived

by BAEF" were Novecon's "(1) meeting with the landowners

to try to negotiate a different percentage of the deal and (2)

meeting with Bulgarian officials to obtain zoning for the

project." Novecon Br. at 25. But "a party's expenditures in

preparation for performance that do not confer a benefit on

the other party do not give rise to a restitution interest."

Restatement (Second) of Contracts s 370 cmt. a (1980); see

Richardson v. Green, 528 A.2d 429, 438 n.12 (D.C. 1987)

(holding that plaintiff may not recover if "defendant received

no value"). Here there is insufficient evidence that the Fund

received a valuable benefit from Novecon's unsuccessful ef-

forts to negotiate with the Batsovs and Bulgarian officials.

III

We turn next to Novecon's defamation claim, which is

based on the cover letter BAEF sent to 570 individuals and

organizations in the United States and Bulgaria. The letter

enclosed the Wall Street Journal and 24 Hours articles, as

well as BAEF's letter to the editor. The allegedly defamato-

ry statements were the cover letter's contentions that:

Dr. Rahn, through Novecon, seeks to extort $200,000 of

U.S. taxpayer money from the BAEF as a fee for a real

estate project that the BAEF rejected because it turned

out to be a veritable "Brooklyn Bridge" of misrepresen-

tation. Among other problems, Novecon's client did not

own the land on which the project was to be developed--

despite representations by Novecon to the contrary.

Since there was nothing to sell, we did not buy their

"Brooklyn Bridge."

J.A. 169. The district court dismissed this claim on the basis

of both First Amendment and common-law privileges. As we

find the common-law privilege sufficient to sustain the dis-

missal, we do not address BAEF's First Amendment argu-

ment.

The District of Columbia recognizes "self defense" as a

qualified privilege constituting a complete defense to a claim

of libel or defamation. See Mosrie v. Trussell, 467 A.2d 475,

477 (D.C. 1983); Dickins v. International Bhd. of Teamsters,

171 F.2d 21, 24 (D.C. Cir. 1948). "When the author of a libel

writes ... for the protection of his own rights or interests,

that which he writes is a privileged communication unless the

writer be actuated by malice." Dickins, 171 F.2d at 24.

"[T]he existence of the privilege is a question of law for the

court[;] whether it was abused by the defendant, is a ques-

tion of fact for the jury." Mosrie, 467 A.2d at 477; see

Columbia First Bank v. Ferguson, 665 A.2d 650, 655 (D.C.

1995); Altimont v. Chatelain, Samperton & Nolan, 374 A.2d

284, 290 (D.C. 1977).

There is no question but that the privilege applies in this

case. BAEF and its management had been subjected to

serious attacks in letters to Congress and articles in the

press, and were privileged to respond to those attacks in self

defense.5 Thus, "the dispositive issue in this case, as in most

cases involving an assertion of qualified privilege, is whether

there has been sufficient evidence of malice to overcome the

privilege." Columbia First, 665 A.2d at 656. The burden of

__________

5 Although the District of Columbia cases do not expressly set out

the requirements for coming within the protection of the self-

defense privilege, they do establish the elements of the related

"common interest" privilege. To be protected by that privilege,

"the statement must have been (1) made in good faith, (2) on a

subject in which the party communicating has an interest ... , (3)

to a person who has such a corresponding interest." Moss v.

Stockard, 580 A.2d 1011, 1024 (D.C. 1990). For essentially the

same reasons discussed below, those requirements are satisfied

here. BAEF made the statement in the good-faith belief that it

was necessary to protect the interests of the Fund from what it saw

as a false and potentially damaging attack on its reputation for fair

dealing, and sent it to those with either an interest in or business

dealings with the Fund. While " '[e]xcessive publication,' defined as

publication to those with no common interest in the information

communicated, or publication not reasonably calculated to protect

or further the interest, will render [a] statement non-privileged,"

id., for the reasons discussed in Part III(B), we do not find BAEF's

statements to have been excessively published.

proof to make that showing rests on the plaintiff. Mosrie,

467 A.2d at 477; Altimont, 374 A.2d at 290.

District of Columbia law makes it very difficult for a

plaintiff to overcome a qualified privilege. As the Court of

Appeals has made clear, the common-law malice necessary to

overcome the self-defense privilege is considerably different

from the "actual malice" necessary to overcome the First

Amendment privilege. The latter requires publication with

knowledge that a statement was false or with reckless disre-

gard as to whether it was false. See Moss v. Stockard, 580

A.2d 1011, 1026 n.29 (D.C. 1990) (citing New York Times v.

Sullivan, 376 U.S. 254 (1964)). Common-law malice, by

contrast, "emphasize[s] bad faith and evil motive." Id.; see

Mosrie, 467 A.2d at 477. It is "the doing of an act without

just cause or excuse, with such a conscious indifference or

reckless disregard as to its results or effects upon the rights

or feelings of others as to constitute ill will." Moss, 580 A.2d

at 1025; Mosrie, 467 A.2d at 477. And "unless the statement

itself is 'so excessive, intemperate, unreasonable, and abusive

as to forbid any other reasonable conclusion than that the

defendant was actuated by express malice,' malice must be

proven by extrinsic evidence." Moss, 580 A.2d at 1024 (quot-

ing Ford Motor Credit Co. v. Holland, 367 A.2d 1311, 1314

(D.C. 1977)); see Columbia First, 665 A.2d at 656.

Moreover, "the mere existence of ill will on the part of the

publisher toward the subject of the publication does not

defeat the publisher's privilege if the privilege is otherwise

established by the occasion and a proper purpose." Mosrie,

467 A.2d at 477. Rather, the "court looks to the primary

motive by which the defendant is apparently inspired; and,

the fact that he feels resentment and indignation towards the

plaintiff and enjoys defaming him will not forfeit the privilege

so long as the primary purpose is to further the interest

which is entitled to protection." Id. at 477-78; see Columbia

First, 665 A.2d at 656. Most significantly,

if the language of the communication and the circum-

stances attending its publication by the defendant are as

consistent with the nonexistence of malice as with its

existence, there is no issue for the jury, and it is the duty

of the trial court to direct a verdict for the defendant.

Mosrie, 467 A.2d at 478 (quoting National Disabled Soldiers'

League, Inc. v. Haan, 4 F.2d 436, 441-42 (D.C. 1925)); see

Altimont, 374 A.2d at 291; Dickins, 171 F.2d at 25.

A

In this case we cannot deduce the necessary malice from

BAEF's words alone. To be sure, the Fund's description of

the Novecon lawsuit as an attempt "to extort $200,000 of U.S.

taxpayer money from the BAEF," and its description of the

problems over land title as "a veritable 'Brooklyn Bridge' of

misrepresentation," were harsh and intemperate. But we

cannot say that the statement was " 'so excessive, intemper-

ate, unreasonable, and abusive as to forbid any other reason-

able conclusion than that the defendant was actuated by

express malice.' " Moss, 580 A.2d at 1024 (quoting Ford

Motor, 367 A.2d at 1314).

We cannot say so particularly because the statements the

District of Columbia Court of Appeals found protected by the

self-defense privilege in Mosrie v. Trussell were at least as

harsh and intemperate as those at issue here. In that case,

the Washington Post had reported a series of complaints of

incompetence and racism against Trussell, the Deputy Chief

of the Metropolitan Police Department, made by members of

the Homicide Branch. The Chief of Police asked Trussell to

respond to the complaints. Trussell responded by making

allegedly defamatory statements about Mosrie, the command-

er of the Homicide Branch, whom he suspected of being the

source of the Washington Post article. Specifically, these

statements included Trussell's suspicion that Mosrie was:

manipulating his pay records, running his outside busi-

nesses on police time, using his police cruiser for person-

al business; and that he was often absent from work, did

not respond to investigations after normal working hours

and was not adequately informed as to homicide investi-

gations.

Mosrie, 467 A.2d at 477. Notwithstanding the court's de-

scription of these statements as "alleged dereliction of duty

and possible criminal abuses," the court concluded that "[a]ny

finding of malice would be based only on speculation, which is

not sufficient to send the issue to the jury." Id. at 478.

"Mere vehemence, even exaggerated statements ... will not,"

the court observed, "destroy the privilege or necessarily

present a question of fact." Id. at 479 (quotation omitted).

Moreover, notwithstanding that plaintiff had shown "evidence

that Trussell's communications were inspired by resentment

and indignation at Mosrie," the court held, he was still

"privileged to explain to ... the Chief his opinion as to the

motivations behind the list of complaints against him." Id.

Because "at most, the evidence [was] as consistent with the

nonexistence of malice on the part of Trussell toward Mosrie

as it [was] with the existence," the court concluded that a

directed verdict against the plaintiff was in order. Id. at 480.

Although BAEF's characterization of Novecon as attempt-

ing to "extort" taxpayer money and to sell it the "Brooklyn

Bridge" was harsh, it was no harsher than Trussell's leveling

of charges of "criminal abuses" against another police officer.

While Novecon contends that the reader would interpret

BAEF's letter as literally charging it with a crime (extortion),

we think that unlikely. The context of the statement, which

was contained in a cover letter to a package of material

including the original Wall Street Journal article, made clear

to the reader that the reference was to Novecon's civil lawsuit

and not to some nefarious scheme. Such usage is perfectly

consistent with dictionary definitions of "extort." See, e.g.,

Webster's Third New International Dictionary 806 (1986)

(defining extort as "to obtain from an unwilling or reluctant

person by importunity, argument or ingenuity ... <she did

at last [extort] from her father an acknowledgment that the

horses were engaged--Jane Austen>").

Indeed, the statement at issue here is quite close to that

considered by the Supreme Court in Greenbelt Cooperative

Publishing Assoc. v. Bresler, 398 U.S. 6 (1970). There, a

developer was accused of "blackmail[ing]" the city council to

obtain a zoning variance by simultaneously negotiating to sell

the city a piece of desirable real estate. "It is simply

impossible to believe," the Court said, "that a reader who

reached the word 'blackmail' in either article would not have

understood exactly what was meant: it was Bresler's [the

developer's] public and wholly legal negotiating proposals that

were being criticized." Id. at 14. The court continued:

No reader could have thought that [the defendants] were

charging Bresler with the commission of a criminal of-

fense. On the contrary, even the most careless reader

must have perceived that the word was no more than

rhetorical hyperbole, a vigorous epithet used by those

who considered Bresler's negotiating position extremely

unreasonable.

Id.

As with the use of "blackmail" in Greenbelt, here the word

"extort" was used as "a vigorous epithet" by "those who

considered" Novecon's litigating position "extremely unrea-

sonable." And there can be no question that BAEF actually

believed that Novecon's litigating position--its claim that

BAEF had breached a binding contract and so should pay it

$200,000--was unreasonable. BAEF vigorously defended it-

self against Novecon's contract claim in the district court, and

we have upheld that defense. Accordingly, we cannot find

that BAEF's choice of epithets " 'forbid[s] any other reason-

able conclusion than that the defendant was actuated by

express malice.' " Moss, 580 A.2d at 1024 (quoting Ford

Motor, 367 A.2d at 1314).6

B

As BAEF's statement is insufficient on its own to establish

malice, Novecon must prove malice "by extrinsic evidence."

Moss, 580 A.2d at 1024 (quoting Ford Motor, 367 A.2d at

__________

6 We reach the same conclusion with respect to the use of the

"Brooklyn Bridge" metaphor to describe, inter alia, the dispute over

the Batsovs' title to the property. As the district court found, the

term was "a figure of speech that reflected the defendant's assess-

ment of Novecon's contract offer, obviously subject to many debata-

ble interpretations." Novecon II, 977 F. Supp at 51.

1314). Having no direct extrinsic evidence of ill will on the

part of BAEF, Novecon turns to circumstantial evidence.

The first piece of circumstantial evidence offered by Nove-

con is the fact that "defendants made their defamatory attack

on plaintiffs for statements made by a third party." Novecon

Br. at 14. "Neither Novecon nor Dr. Rahn," plaintiffs con-

tend, "were the sources of the Rushford article." Hence, the

"counter attack was against the wrong party."7 Id. But

Novecon cites no case for the proposition that the self-defense

privilege may be wielded only where the plaintiff is the known

attacker. Since the attacks specifically referred to the Nove-

con matter--as an example of BAEF's "arrogance," "shoddy

performance," or worse--any reply would have had to re-

spond to the charges concerning BAEF's dealings with Nove-

con, regardless of the source of those allegations.

Moreover, Mosrie suggests that the privilege is not limited

to replies to known attackers. Although Trussell "suspected"

Mosrie of being the source of the critical Washington Post

article, Mosrie apparently was not named in the article.

Here, BAEF certainly suspected that Novecon and Rahn

were the sources for Rushford's Wall Street Journal article.

Regardless whether that was true, the suspicion was not

unreasonable in light of the parallels between the article's

charges and those contained in both Rahn's letters to Con-

gress and the two-page draft the American Ambassador gave

to BAEF. In addition, Ronald Utt, Novecon's managing

director, was quoted by name in the Rushford article. Under

District of Columbia law, BAEF was therefore "privileged to

explain ... [its] opinion as to the motivations behind the list

of complaints against" it. Mosrie, 467 A.2d at 480. It "had

__________

7 Plaintiffs do not dispute that Rahn was the author of the letter

sent to members of Congress. At oral argument they suggested

that the letter could not trigger a right of reply because Rahn had

the right to petition Congress. Yet, even if that right would have

given Rahn his own privilege in the event BAEF had sued him for

defamation, plaintiffs cite no case for the proposition that the fact

an attack is communicated to Congress deprives a citizen of the

common-law privilege of self-defense.

the right to repel the attack ... and to retort upon its

assailant if such retort was a necessary part of its defense or

fairly arose out of the charges made against" it. Id. at 479

(quotation omitted).

Novecon's second piece of circumstantial evidence of malice

is the fact that BAEF sent its letter to 570 people in the

United States and Bulgaria. Novecon contends that this

response was so disproportionate as to be "alone sufficient

evidence to support a jury inference of malice." Novecon Br.

at 17. BAEF's single letter to the editor of the Wall Street

Journal, Novecon notes, was a measured response. The 570

letters, however, assertedly took the response outside the

scope of the privilege.

The district court disagreed, as do we. As the court said,

"the common law qualified privilege asserted here does not

demand that defendants demonstrate failsafe precision in

identifying third parties with a sufficient interest in BAEF's

public controversy." 977 F. Supp. at 50.8 BAEF sent its

letter to "U.S. government agencies, Bulgarian officials, and

actual and potential business relations within the Bulgarian

private sector." Id. at 49. Specifically, the Fund "attempted

to reach persons whose opinions of BAEF were, or reason-

ably could have been, affected by plaintiffs' comments and the

ensuing wave of negative publicity." Id. at 50. Approximate-

ly five hundred of the letters went to Bulgaria, with all but a

handful of those going to borrowers from the Fund. Bauer

Aff. p 91 (J.A. 472); Schiller Aff. p 59 (J.A. 726). BAEF

could not limit itself to readers of the Wall Street Journal,

__________

8 The Restatement (Second) of Torts states:

If on an occasion giving rise to a conditional privilege the

publisher mistakenly communicates the defamatory matter to

some person to whom he is not otherwise privileged to publish

it, he is protected if ... he reasonably believes that the person

to whom he communicates it is a person whose knowledge of

the matter would be useful in the protection of the interests in

question.

Restatement (Second) of Torts s 604 cmt. e (1977) (quoted in

Novecon II, 977 F. Supp. at 50).

because the Rushford article had been republished in the

Bulgarian press and Novecon had sent its own letters directly

to members of Congress. As the district court explained,

"defendants mailing to several hundred addressees must be

viewed in light of the negative press coverage BAEF received

in Bulgarian and international newspapers, reaching tens of

thousands of readers." 977 F. Supp. at 55-56. Compare

Dickins, 171 F.2d at 23-25 (finding no showing of malice

where Teamsters' union responded to critical newspaper arti-

cles by attacking critics in Teamsters magazine sent to

"400,000 Teamsters and about 1,200 others, including all

members of Congress, a number of colleges, libraries, news-

papers and other periodicals").

Finally, we reject Novecon's assertion that the district

court improperly denied its request for discovery, under

Federal Rule of Civil Procedure 56(f), of the names of the 570

recipients of BAEF's letter. We review such claims under an

abuse of discretion standard. See Paquin v. Federal Nat'l

Mortgage Assoc., 119 F.3d 23, 28 (D.C. Cir. 1997). Plaintiffs'

principal argument is that the names could have shown "that

BAEF's letter may have reached too broad an audience to

constitute a reasonable defense of its reputation." Novecon

II, 977 F. Supp. at 55. But as the district court noted, BAEF

did disclose the categories of recipients (e.g., members of

Congress, borrowers from the Fund, etc.). Id. at 56. Given

that level of disclosure, and the leeway a defendant has to

determine those to whom it must reasonably communicate its

response, we cannot dispute the district court's conclusion

that production of the names was not--as required by Rule

56(f)--"essential to justify [Novecon's] opposition" to sum-

mary judgment. Id. at 54, 55-56.

C

In sum, we conclude that because no reasonable factfinder

could find that "the language of the communication and the

circumstances attending its publication by the defendant"

were not at least "as consistent with the nonexistence of

malice as with its existence, there is no issue for the jury."

Mosrie, 467 A.2d at 478 (quoting National Disabled Soldiers,

4 F.2d at 441-42); see Altimont, 374 A.2d at 292. It there-

fore was "the duty of the trial court to direct a verdict for the

defendant" on Novecon's claim of defamation. Mosrie, 467

A.2d at 479.

IV

For the foregoing reasons, the judgment of the district

court is affirmed.9

__________

9 Although BAEF filed counterclaims against Novecon, it advised

the district court that it would withdraw them if its motion for

summary judgment were granted in full. Because the district court

granted BAEF's motion, it dismissed the counterclaims. 967

F. Supp. at 1391; 977 F. Supp. at 52. The Fund has filed a cross-

appeal of that dismissal, but states that it seeks reinstatement only

if we reverse the district court's judgment. BAEF Br. at 39;

BAEF Reply Br. at 1-2. Because we have affirmed that judgment,

we treat the cross-appeal as waived and direct that it be dismissed.