Jankovic v. International Crisis Group

Notice: This opinion is subject to formal revision before publication in the

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 20, 2007 Decided July 24, 2007

No. 06-7095

MILAN JANKOVIC, A/K/A PHILIP ZEPTER, ET AL.,

APPELLANTS

v.

INTERNATIONAL CRISIS GROUP, A NON-PROFIT

ORGANIZATION, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 04cv01198)

William T. O’Brien argued the cause for appellants. With

him on the briefs were Lisa M. Norrett and Malcolm I. Lewin.

Amy L. Neuhardt argued the cause for appellees. With her

on the brief were Jonathan L. Greenblatt and Cynthia P.

Abelow.

2

Before: ROGERS, GRIFFITH and KAVANAUGH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge: In this diversity action, Milan

Jankovic, who goes by the name Philip Zepter, and two of his

related business entities — Fieldpoint B.V. and United Business

Activities Holding, A.G. — appeal the dismissal of their

complaint for defamation, tortious interference with business

expectancy, and false light invasion of privacy against

International Crisis Group (“ICG”) and one of its employees,

James Lyon. At issue are three documents that allegedly link

Philip Zepter and his business interests to Serbian president

Slobodan Milosevic, who was put on trial as a war criminal

before his death. The district court found that the presence of

Lyon in the case destroyed diversity. After the complaint was

amended to exclude Lyon, the district court, applying District of

Columbia law, dismissed claims relating to two of these

documents — a report authored by ICG (“Report 141”) and an

email sent by Lyon — because the statute of limitations had

expired. The district court dismissed the remaining claims after

finding that the third document, ICG’s Report 145, was not

capable of defamatory meaning and could not support claims for

the related torts. We affirm the district court’s dismissal of the

original complaint and its dismissal of the claims relating to

Report 141 and the Lyon email. However, because one of the

passages in Report 145 is capable of defamatory meaning, we

reverse the dismissal of the amended complaint in part.

I.

ICG is a nonprofit organization registered under District of

Columbia law whose mission is “to prevent and resolve deadly

conflict.” To this end, it produces analytical reports,

3

newsletters, briefing papers, and other publications targeted at

influencing and advising international decisionmakers. Among

these publications are two reports. On March 18, 2003, a report

entitled Serbia after Djindjic was issued bearing the ICG logo

above the words “Belgrade/Brussels.” This report, numbered

141, recommends various reforms in the wake of the

assassination of the Serbian premier. Report 145, issued July

17, 2003, is a follow-up entitled Serbian Reform Stalls Again,

again with the ICG logo and “Belgrade/Brussels” on the cover.

Both reports reference Philip Zepter, the individual, as well as

the Zepter Group of businesses. Citing Belgrade media sources,

Report 141 asserts that the Zepter Group “allegedly provides

cover for money laundering and weapons shipments.” Report

145 lists Philip Zepter as a member of the “new Serbian

oligarchy” that benefitted from close ties to Milosevic and

continues to prosper through unchecked access to public

resources. Additionally, according to the amended complaint,

James Lyon sent an email that disseminated a six-paragraph

article of unknown origin that reported that “Zepter operated in

front companies for State Security, . . . smuggling weapons (to

Al-Qaeda among others) and laundering money.” Lyon was

ICG’s “main investigator and Project Director for the Balkans”

and the “Director of ICG Serbia” when Reports 141 and 145

were issued.

Philip Zepter and the corporations (collectively “Zepter”)

filed suit on January 12, 2004, in the Court of First Instance of

Brussels, Belgium. The complaint named James Lyon of Provo,

Utah, and “[t]he non-profit association INTERNATIONAL

CRISIS GROUP, in short ICG, entered in the register of

enterprises . . . with registered office located in . . .

BRUSSELS.” However, as Zepter would later learn, this was

not the non-profit organization responsible for the publications.

According to Zepter’s amended complaint, “[i]n responding

initially, in Brussels, to the Brussels Action complaint, ICG for

4

the first time represented that there were two ICG corporate

entities, one in Brussels and another in the United States.” Am.

Compl. ¶ 72. In response to an action under 28 U.S.C. § 1782

to conduct discovery in the United States for the Belgian action,

filed on June 18, 2004, Zepter learned that the organization it

sued in Belgium, which is incorporated under Belgian law, is

distinct from the International Crisis Group that employs Lyon

and issued Reports 141 and 145. As ICG now explains, it is

incorporated in Washington, D.C., but headquartered in

Brussels, with offices worldwide. See Appellees’ Br. at 3. The

Belgian entity, which it calls International Crisis Group Agence

Internationale Sans but Lucratif (“AISBL”), is “an inactive

corporation” with “no paid employees and . . . no responsibility

for publishing ICG’s reports.” Id. at 4.

On July 15, 2004, Zepter filed a complaint in the United

States District Court for the District of Columbia against ICG

incorporated here. On August 23, 2005, the district court

dismissed that complaint without prejudice on the ground that it

was clear Lyon is domiciled in Belgrade — and not Provo, Utah

— therefore destroying complete diversity because a stateless

citizen is not diverse with an alien like Zepter. Alternatively,

the district court noted that it was clear the court lacked personal

jurisdiction over Lyon. On September 15, 2005, Zepter filed an

amended complaint that removed Lyon as a defendant. ICG

moved to dismiss, and on May 1, 2006, the district court granted

the motion, finding that the statute of limitations had expired,

without any valid defenses, as to Report 141 and the Lyon email

and that the claims related to Report 145 failed as a matter of

law. See Jankovic v. Int’l Crisis Group, 429 F. Supp. 2d 165

(D.D.C. 2006).

5

II.

Zepter first contends that the district court erred by

dismissing the original complaint for want of subject-matter

jurisdiction because Lyon is actually domiciled in Utah, and

because the district court should have authorized jurisdictional

discovery to prove this point. We need not resolve these

disputes, however, because Zepter does not challenge on appeal

the district court’s alternative ruling that Lyon lacked sufficient

ties to the District of Columbia to warrant an exercise of

personal jurisdiction. Personal jurisdiction is “‘an essential

element of the jurisdiction of a district . . . court,’ without which

the court is ‘powerless to proceed to an adjudication.’” Ruhrgas

AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999) (quoting

Employers Reins. Corp. v. Bryant, 299 U.S. 374, 382 (1937)).

A complaint may be dismissed for lack of personal jurisdiction

without settling whether subject-matter jurisdiction exists.

Because Zepter has waived any challenge to personal

jurisdiction by failing to raise the issue, see Corson & Gruman

Co. v. NLRB, 899 F.2d 47, 50 n.4 (D.C. Cir. 1990), this court

cannot upset the district court’s dismissal of the original

complaint.

Under District of Columbia law, which applies to this

diversity action, claims of defamation are subject to a one-year

limitations period. D.C. CODE § 12-301(4). No statutory period

is provided for tortious interference with business expectancy or

false light invasion of privacy, but where, as here, “a stated

cause of action is ‘intertwined’ with one for which a limitations

period is prescribed, [courts operating under District of

Columbia law] apply the specifically stated period.” Mittleman

v. United States, 104 F.3d 410, 415 (D.C. Cir. 1997).

Only Report 145 was published within a year of the

initiation of this lawsuit on July 15, 2004. Zepter contends,

6

however, that there is a valid defense to the statute of limitations

under the doctrines of lulling, equitable tolling, and equitable

estoppel. Alternatively, Zepter maintains that the foreseeable

republication of ICG’s reports on the Internet resets the one-year

clock. The district court rejected these defenses and our review

is de novo. See Chung v. U.S. Dep’t of Justice, 333 F.3d 273,

278 (D.C. Cir. 2003). We agree with the district court.

A defendant who engages in “inequitable conduct” can be

equitably estopped from invoking the statute of limitations. Id.

at 278. Zepter contends that the doctrine applies here because

ICG “actively concealed the identity of the authorship of the

Publications at issue and thwarted the Zepter Plaintiffs’

discovery attempts.” Appellants’ Br. at 23. At the motion-to-

dismiss stage, the court must accept this allegation as true. See

Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996) (per

curiam). Nonetheless, ICG is not equitably estopped from

pleading the statute of limitations. District of Columbia law

distinguishes between a party that conceals the existence of a

cause of action and a party that conceals its own identity. Under

Chappelle’s Estate v. Sanders, 442 A.2d 157, 158-59 (D.C.

1982), equitable estoppel encompasses only the former. The

Chappelle rule remains the law of the District of Columbia. See

Cevenini v. Archbishop of Wash., 707 A.2d 768, 773-74 (D.C.

1998); Diamond v. Davis, 680 A.2d 364, 380 n.14 (D.C. 1996).

Zepter does not maintain that ICG did anything to conceal the

existence of Zepter’s claim.

The similar doctrine of equitable tolling does not concern

the conduct of the defendant but rather applies when the plaintiff

“despite all due diligence . . . is unable to obtain vital

information bearing on the existence of his claim.” Chung, 333

F.3d at 278 (quoting Currier v. Radio Free Europe/Radio

Liberty, Inc., 159 F.3d 1363, 1367 (D.C. Cir. 1998)). This

defense of Zepter’s fares no better, as the District of Columbia

7

Court of Appeals has made clear that “good-faith mistakes of

forum” do not qualify for equitable tolling even if “the

defendant was on notice of the claim as of the initial filing in an

improper forum that occurred within the limitations period.”

Sayyad v. Fawzi, 674 A.2d 905, 906 (D.C. 1996) (per curiam).

Similar to equitable estoppel, the doctrine of lulling applies

when the defendant “ha[s] done something that amounted to an

affirmative inducement to plaintiffs to delay bringing action,”

Bailey v. Greenberg, 516 A.2d 934, 937 (D.C. 1986) (quoting

Hornblower v. George Wash. Univ., 31 App. D.C. 64, 75

(1908)), as when a defendant promises to settle a dispute outside

of court, see, e.g., id. at 939; East v. Graphic Arts Indus. Joint

Pension Trust, 718 A.2d 153, 156-57 (D.C. 1998). At most,

Zepter contends that ICG’s inaction delayed its filing of this

lawsuit. Because Zepter alleges no specific act of affirmative

inducement, the doctrine of lulling is unavailing.

Finally, Zepter maintains that foreseeable republication of

a libelous document by a third-party resets the limitations clock

and that the district court should have allowed discovery “to

enable [Zepter] to ascertain the dates of those republications and

present them to the [district court].” Appellants’ Br. at 35. Like

most common-law jurisdictions, the District of Columbia has

adopted the modern “single publication” rule regarding the

accrual of libel claims. See Mullin v. Wash. Free Weekly, Inc.,

785 A.2d 296, 298 n.2 (D.C. 2001); Ogden v. Ass’n of U.S.

Army, 177 F. Supp. 498 (D.D.C. 1959); RESTATEMENT

(SECOND) OF TORTS § 577A. Thus, “for purposes of the statute

of limitations in defamation claims, a book, magazine, or

newspaper has one publication date, the date on which it is first

generally available to the public.” Mullin, 785 A.2d at 298 n.2.

Copies of the original are still part of the single publication but

republication in a new edition creates a new publication on the

8

rationale that the intent is to reach a new audience. See

RESTATEMENT § 577A cmt. d & illus. 5-6.

The District of Columbia courts have not specifically

applied the single publication rule to the posting of identical

material by a third-party on the Internet. Courts in other

jurisdictions have applied the single publication rule to

allegations of defamation on the Internet but have not addressed

republication on third-party websites. See In re Davis, 347 B.R.

607, 611-12 (W.D. Ky. 2006); Churchill v. State, 876 A.2d 311,

316-19 (N.J. Super. Ct. App. Div. 2005); Firth v. State, 706

N.Y.S.2d 835, 842-43 (Ct. Cl. 2000). The single publication

rule was designed as an accommodation to new forms of

communication, and in applying the rule to the Internet, the

court must be mindful of the rule’s purpose, which according to

the Restatement consists of “avoiding multiplicity of suits, as

well as harassment of defendants and possible hardship upon the

plaintiff himself.” RESTATEMENT § 577A cmt. d. Here, Zepter

alleges that, as a result of ICG’s distribution of Report 141, its

defamatory language has been “incorporated in and further

disseminated through various other websites and publications.”

Am. Compl. ¶ 65. In the print media world, the copying of an

article by a reader — even for wide distribution — does not

constitute a new publication. See RESTATEMENT § 577A cmt. d

& illus. 6. The equivalent occurrence should be treated no

differently on the Internet. At best, the third-party reproductions

alleged by Zepter constitute “mere continuing impact from past

violations [that] is not actionable” as a new cause of action,

Knox v. Davis, 260 F.3d 1009, 1013-14 (9th Cir. 2001) (internal

quotation marks omitted) (citing Del. State Coll. v. Ricks, 449

U.S. 250 (1980)). Notably, Zepter does not allege that ICG

updated the content of Report 141 or took steps beyond its initial

publication to expand the audience for its Report, and the court

need not address these possibilities. See Sapna Kumar,

Comment, Website Libel and the Single Publication Rule, 70 U.

9

CHI. L. REV. 639, 657-61 (2003). Based on Zepter’s allegations,

ICG can be held to account for only a single publication of

Report 141, but these claims are time-barred.

III.

This leaves only the claims stemming from Report 145,

entitled Serbian Reform Stalls Again, which was issued on July

17, 2003. Zepter faults three passages in the 28-page report that

reference “Zepter Banka,” “Filip Zepter,” and “a Zepter

company,” respectively. Report 145 does not mention either of

the corporate appellants, Fieldpoint B.V. or United Business

Activities Holding, A.G.

A plaintiff claiming defamation must show:

(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 amounted to at least

negligence; 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.

Croixland Props. L.P. v. Corcoran, 174 F.3d 213, 215 (D.C. Cir.

1999) (quoting Crowley v. N. Am. Telecomms. Ass’n, 691 A.2d

1169, 1172 n.2 (D.C. 1997)). As a threshold issue, Zepter

contends that ICG relied upon exhibits beyond the scope of the

amended complaint, and the district court’s reliance, in turn,

would require converting the Rule 12 motion to a Rule 56

summary judgment motion and affording discovery to Zepter.

The extrinsic evidence, however, is public record information

from Zepter’s filings in New York seeking discovery in the

10

Belgian action. Zepter opposes consideration of what he himself

filed in court. However, such materials may properly be

considered on a motion to dismiss. See Marshall County Health

Care Auth. v. Shalala, 988 F.2d 1221, 1222-23 (D.C. Cir. 1993).

Turning, then, to the merits of the district court’s dismissal, the

passages in Report 145 raise distinct issues.

A.

The first passage appears in a discussion of the continued

influence of the Bezbednosno-Informativna Agencija (“BIA”),

Serbia’s state-security agency. The passage reads:

The BIA as a whole is deeply compromised by

criminal activities as well as numerous other illegal

actions under Milosevic. It appears to have shadowy

connections to at least two banks — Komercijalna

Banka and Kapital Banka — and maintains close ties

with a third, Zepter Banka. It has been involved in the

weapons trade, through such front companies as

Grmec. Its most dangerous component is the so-called

military line, composed of former [Serbian

Counterintelligence] officers who transferred from the

army in the early 1990s. Many of these are engaged in

economic activities connected to some of the

mentioned banks.

Report 145, at 15 (footnotes omitted). The district court

concluded that this statement was not “concerning the plaintiffs”

because it references Zepter Banka instead of Philip Zepter,

Fieldpoint, or United Business. Jankovic, 429 F. Supp. 2d at

174-76.

“To satisfy the ‘of and concerning’ element, it suffices that

the statements at issue lead the listener to conclude that the

speaker is referring to the plaintiff by description, even if the

11

plaintiff is never named or is misnamed.” Croixland, 174 F.3d

at 216. In Croixland, the defendants stated that the owner of a

race track was “connected to organized crime” but misidentified

the race track owner. Id. at 215-16. This court held that a

complaint filed by the actual race track owner should not be

dismissed because “[e]ven if the lobbyists misidentified the

owner of the facility, it did not remove the taint to the true

owner,” especially after “[d]rawing favorable inferences for the

non-moving party and viewing the alleged remarks from the

perspective of the listeners.” Id. at 217 (citations omitted). An

action could also have been sustained by the company named in

the statements that did not actually own the race track. See Peck

v. Tribune Co., 214 U.S. 185, 188-89 (1909).

As the district court recognized, the first passage of Report

145 neither mentions Philip Zepter directly nor refers to him

indirectly, except to the extent that he shares a name with his

company. So Croixland does not help Philip Zepter; rather, the

question is whether the namesake of a corporation can be

defamed when false misdeeds are attributed to his company. In

the reverse situation, the Restatement provides that “[a]

corporation is not defamed by communications defamatory of its

officers, agents or stockholders unless they also reflect discredit

upon the method by which the corporation conducts its

business.” RESTATEMENT § 561 cmt. b.

Stated generally, “[d]efamation is personal; . . . [a]llegations

of defamation by an organization and its members are not

interchangeable. Statements which refer to individual members

of an organization do not implicate the organization. By the

same reasoning, statements which refer to an organization do not

implicate its members.” Provisional Gov’t of New Afrika v.

ABC, Inc., 609 F. Supp. 104, 108 (D.D.C. 1985) (citation

omitted). This principle is not absolute, of course. If, for

example, one person is solely in charge of corporate decision

12

making, an attack on a corporation would vicariously attack the

decision maker. See, e.g., Brayton v. Crowell-Collier Publ’g

Co., 205 F.2d 644, 645 (2d Cir. 1953); Caudle v. Thomason, 942

F. Supp. 635, 638 (D.D.C. 1996). But matters that might

“reflect[] poorly upon an individual” are not necessarily

“concerning” that person. Patzer v. Liberty Commc’ns, Inc., 650

P.2d 141, 143 (Or. Ct. App. 1982).

Applying this standard, the first excerpt concerns neither

Fieldpoint nor United Business. Their connection is that

Fieldpoint owns the Zepter trademarks and United Business

distributes Zepter products under these trademarks. Fieldpoint

and United Business are essentially investors in the Zepter

name. But “[t]he mere fact that a publication might injure the

investors in a business does not give rise to a claim for

defamation in those investors unless the publication appears to

refer to the investors individually.” AIDS Counseling & Testing

Ctrs. v. Group W Television, Inc., 903 F.2d 1000, 1005 (4th Cir.

1990).

Nor could the excerpt be deemed to concern Philip Zepter

personally. The amended complaint emphasizes the

expansiveness of the Zepter enterprise:

[t]he Zepter Group is now a global enterprise with

sales through separate companies based in more than

fifty countries on five continents across the world, and

with a network of more than 2,500 regular employees,

100,000 sales consultants, eighty-nine shops, and more

than fifty pavillions located in major cities throughout

the world.

Am. Compl. ¶ 14. Accepting this as true, it cannot be the case

that a reasonable reader of the first excerpt of Report 145 would

conclude that Philip Zepter personally had engaged in illicit

13

activities simply because a bank bearing his name — one of

many banks in the Zepter Group, see id. ¶ 24 — “maintains

close ties with” Serbian state security.1

B.

The second passage discusses the “New Serbian Oligarchy.”

Three paragraphs are relevant:

The unwillingness to continue the crackdown

reflects the power of the Milosevic-era financial

structures that — with the rigid oversight once

provided by the dictator removed — have transformed

themselves into a new Serbian oligarchy that finances

many of the leading political parties and has

tremendous influence over government decisions.

Some of the companies were originally formed as

fronts by the State Security or Army

Counterintelligence (KOS), while others operated at

the direct pleasure of the ruling couple. Under

Milosevic, many of these companies profited from

special informal monopolies, as well as the use of

privileged exchange rates. In return, many of them

financed the regime and its parallel structures.

1

Alternatively, Zepter contends that he should have been

allowed to amend his complaint a second time in order to allege

additional facts. ICG responds that Zepter never requested leave to

amend in the district court, and Zepter offers no reply. Zepter does not

seek to amend the complaint to assure the court of its jurisdiction. See

28 U.S.C. § 1652; Abigail Alliance for Better Access to Developmental

Drugs v. von Eschenbach, 469 F.3d 129, 132 (D.C. Cir. 2006).

Therefore, because Zepter did not raise this issue before the district

court, it has been waived. See Yee v. City of Escondido, 503 U.S. 519,

533-38 (1992); District of Columbia v. Air Fla., Inc., 750 F.2d 1077,

1084 (D.C. Cir. 1984).

14

Some of the individuals and companies are well

known to average Serbs: [fifteen individuals and their

companies, including] Zepter (Milan Jankovic, aka

Filip Zepter) . . . are but some of the most prominent.

Because of the support they gave to Milosevic and the

parallel structures that characterised his regime, many

of these individuals or companies have at one time or

another been on EU visa ban lists, while others have

had their assets frozen in Europe or the US.

In the popular mind, they and their companies

were associated with the Milosevic regime and

benefited from it directly. The [Democratic Opposition

of Serbia] campaign platform in September 2000

promised that crony companies and their owners would

be forced to answer for past misdeeds. Few of the

Milosevic crony companies have been subjected to

legal action, however. The enforcement of the

‘extra-profit’ law is often viewed as selective and there

have been only a handful of instances in which back

taxes, perhaps 65 million Euros worth, have been

collected. Most disturbing is the public’s perception

that — at a time when the economy is worsening —

these companies’ positions of power, influence and

access to public resources seem to have changed very

little.

Report 145, at 17-18 (footnotes omitted).

Again, this passage makes no mention of Fieldpoint or

United Business. The broad mention of Zepter is not sufficient

to render the passage defamatory as to Fieldpoint and United

Business. “When a statement refers to a group, a member of that

group may claim defamation if the group’s size or other

15

circumstances are such that a reasonable listener could conclude

the statement referred to each member or ‘solely or especially’

to the plaintiff.” Browning v. Clinton, 292 F.3d 235, 247 (D.C.

Cir. 2002) (quoting Serv. Parking Corp. v. Wash. Times Co., 92

F.2d 502, 506 (D.C. Cir. 1937)). The Zepter Group is an

expansive global enterprise, and there are no indications that

Fieldpoint or United Business were “solely or especially”

targeted by this statement.

As to Philip Zepter, this passage presents questions about

what qualifies as a defamatory statement. When confronted with

a motion to dismiss, a court must evaluate “[w]hether a

statement is capable of defamatory meaning,” a question of law.

Weyrich v. New Republic, Inc., 235 F.3d 617, 627 (D.C. Cir.

2001). Applying District of Columbia law, “[a] statement is

‘defamatory’ if it tends to injure the plaintiff in his trade,

profession or community standing, or lower him in the

estimation of the community.” Moss v. Stockard, 580 A.2d

1011, 1023 (D.C. 1990). An “allegedly defamatory remark must

be more than unpleasant or offensive; the language must make

the plaintiff appear ‘odious, infamous, or ridiculous.’” Howard

Univ. v. Best, 484 A.2d 958, 989 (D.C. 1984). The district court

concluded that this passage “does not rise to the ‘odious,

infamous, or ridiculous’ level.” Jankovic, 429 F. Supp. 2d at

178.

Although this passage has numerous qualifiers — for

example, the Report says only that “some” of the companies

were fronts for state security — we are unable to say that a

reader of this passage could not reasonably conclude that Philip

Zepter, personally, was a “crony” of Milosevic who supported

the regime in exchange for favorable treatment. See Heard v.

Johnson, 810 A.2d 871, 886 (D.C. 2002). If this tie is

sufficiently “odious, infamous, or ridiculous,” then the

complaint has properly stated a cause of action for defamation.

16

The district court concluded that because Report 145 does not

mention “war crimes or ethnic cleansing by Milosevic or the

Serbian Government,” the “allegations of mutual support”

should be described as “political, not criminal” and therefore not

capable of defamatory meaning. Jankovic, 429 F. Supp. 2d at

177. Merely associating somebody with a foreign government

would not ordinarily be defamatory, but in Southern Air

Transport, Inc. v. ABC, Inc., 877 F.2d 1010 (D.C. Cir. 1989),

this court acknowledged that “[a]n inference that [a plaintiff

company] was engaged in dealings with the [apartheid]

government of South Africa clearly would have a defamatory

meaning because of the intense antipathy felt by a great number

of Americans towards South Africa.” Id. at 1015. In that light,

the passage could lead a reasonable reader to conclude that

Philip Zepter was actively in alliance with Milosevic and his

regime, and so, Philip Zepter has made sufficient allegations to

establish a prima facie case of defamation. ICG objects,

however, that various privileges and protections defeat Zepter’s

claims, and we will remand the claims related to this second

passage for the district court, in the first instance, to address the

applicability and merits of the Opinion and Fair Comment

Protection, the Fair Report Privilege, or the Neutral-Reportage

Doctrine.

C.

The third passage is brief:

Two other individuals with close ties to Milosevic-

era financiers hold key positions of influence within

the Premier Zivkovic’s cabinet. The chief of staff,

Nemanja Kolesar, is a former employee of Delta, while

Zoran Janjusevic, an advisor, is a former employee of

both State Security and a Zepter company.

17

Report 145, at 18. The amended complaint alleges that it was

defamatory to assert that Philip Zepter “holds a key position of

influence.” Am. Compl. ¶ 59. However, Zepter appears to

misread the passage, which refers to “a former employee of . . .

a Zepter company,” not to Philip Zepter himself. Hence, this

statement is not “of and concerning” Philip Zepter, Fieldpoint,

or United Business, and the district court was correct to dismiss

the related allegations.

D.

In addition to his defamation claims, Zepter alleges tortious

interference with business expectancy and false light invasion of

privacy. Am. Compl. ¶¶ 95-119. The district court found that

“because all of the plaintiffs’ claims are rooted in the same

alleged defamatory conduct, they must all be dismissed for the

reasons their defamation claims cannot be maintained.”

Jankovic, 429 F. Supp. 2d at 179. As to the first and third

excerpts in Report 145, this is true; statements not concerning a

plaintiff do not affront privacy rights or business expectancies.

However, as to the second excerpt, the standards for defamation

and false light privacy are not identical.

The District of Columbia follows the Restatement position

that:

To prevail on a false light claim under District of

Columbia law, appellant must show that (a) the

published material places appellant in a false light

which “would be highly offensive to a reasonable

person,” and (b) “the actor had knowledge of or acted

in reckless disregard as to the falsity of the publicized

matter and the false light in which the other would be

placed.

18

Weyrich, 235 F.3d at 628 (quoting RESTATEMENT § 652E).

Thus, “before finding that a statement is not actionable, because

it is not reasonably capable of defamatory meaning, [the district

court] must also satisfy itself that the statement does not

arguably place appellant in a ‘highly offensive’ false light.” Id.

Accordingly, we affirm the district court’s dismissal of the

original and amended complaints, except that we reverse and

remand as to claims of defamation, false light invasion of

privacy, and tortious interference with business expectancy

relating to the second passage of Report 145 as applied to Philip

Zepter personally.