in the united states district court › files › 2013 › 01 › abbas_opp_12b6.pdfin the united...

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

YASSER ABBAS, )

) Plaintiff, ) Civil No. 12-cv-01565-EGS

v. ) )

FOREIGN POLICY GROUP, LLC, ) A DIVISION OF THE WASHINGTON POST ) COMPANY, AND, ) JONATHANSCHANZER, )

Defendants. ) )

)

MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS

MELITO & ADOLFSEN PC

Louis G. Adolfsen Rania Shoukier Michael F. Panayotou S. Dwight Stephens DC (Bar No. 406176)

233 Broadway, 10th FI New York, NY 10279 Telephone: (212) 238-8900 Facsimile: (212) 238-8999 [email protected] [email protected] [email protected] [email protected]

Counsellor PlaintiffYasser Abbas

Case 1:12-cv-01565-EGS Document 19 Filed 12/10/12 of 21

TABLE OF CONTENTS

INTRODUCTION, ..... . ..... II ••• " ....... " ••••• "" ••• " ••• """ •• "." ••• " ••• " •••••• " •••••• """." ••••• ,, •••••••• • ••••••• 1

ARGUMENT .................................................................................................... 3

I. Motion to Dismiss Standard .................................................................. 3

II. A libelous charge is just as effectively harmful, and therefore actionable per se, whether the harmful effect results from words that directly and unequivocally make a charge or whether it results from words that do so indirectly and by inference .................................................... 4

III. Read in context, the accusatory questions posed by the Schanzer article can reasonably be read as assertions of false facts .................................................. 6

IV. Even if the defamatory questions are deemed to be opinions, they are actionable under Milkovich because they" contain provably false factual connotations." "." ." ... " ."",, .. I •••• "".""""." •• ,,"",,. "." •• " ••• """"""" •• "."""".,, •• ". "" ••• ".9

V. Defendants' arguments regarding the purported "supporting allegations" are irrelevant because the allegations referenced are not the supporting allegations."""." ..... """"."""".""" ... ".""." .... " .. """."" ... "" .. "" .. " .. "".""""" .. " .... "".",,.,,.,, .. ,,,, ..... 12

VI. The Complaint alleges that Defendants acted with the requisite fault .................................................................................... 12

VII. While Plaintiff does not have to establish actual malice, sufficient evidence exists to permit such a finding in this case ................................................................................. 14

CONCLUSION ................................................................................................ 16

1


TABLE OF AUTHORITIES

Afro-American Publ'g Co. v. Jaffe, 366 F. 2d 649 (DC Cir. 1966) ................. ................... ... ..... .. .. .... .. .... ..... ..... ...... .. .. ... ..... .. ..... ... .. ... ..... 5

Ashcroft v. Iqbal, 556 U.S. 662 (2009) .... ... ....................................... .... ....... ............................. ... .......... ... .. .. .... .. ... 1,11

Beverly Hills Foodland, Inc. v. United Food & Commercial Workers Union, Local 655, th .

39 F.3d 191 (8 Clr. 1994) .. , ........................ ............................................. ... .. .. .. 7,8

Chapin v. Knight-Ridder, Inc.,

9th •

93 F.2d 1087 (4 Clf. 1993) ....................................................................... .... .. .... ........... .. ...... 6,7,8

Coles v. Wash. Free Weekly, Inc., 881 F.Supp. 26 (D.D.C. 1995) .... .. ........... .. ... ..... .... ..... .. .. ... ........ ... .... ................. ... .. ... ...................... 4

Doe v. United States Dep't of Justice, 753 F.2d 1092,1102 (D.C.Cir.1985) .... .. .. . .. ... . ... .. ............ . .. .... .. . .. ............................ 3

EEOC v. St. Francis Xavier Parochial School, 117 F.3d 621 (D.C.Cir.1997) ...................... ....... ........ .. ....... ......... .. ........... ... ...... ... .4

Erickson v. Pardus, 551 U.S. 89 (2007) ... .......... ..... ......... .. ... ... . . . .......... .. .. .. .. ..... .. ... . .... . .. ..... . .. ... ... .... 3

Harcrow v. Struhar, 236 Ga.App. 403, 511 S.E.2d 545,(1999) ................................................................................. ... .. . 6

Hutchinson v, Proxmire, 443 U.S. 111 (1979) ...... ........ . .. . . .. .. ... ..... . ...... ..... . ..... . .. ........ .... . . .... .. . ...... ... .... .. .. 13

Kowal v. MCI Communications Corp., 16 F.3d 1271 (D.C.Cir.1994) .............. ........ ... ........ ........ .. ......... .. ... .................. ..... 3

Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287 (D.C. Cir. 1988) ...................... ......... ............ .. ............ ...... ........ ..... ... ...... .... .............. 4

Mar-Jac Poultry, Inc. v. Katz, 773 F. Supp.2d 103 (D.D.C. 2011) .......................................... ... ................ ... .... .. .. ..... .... .. ... .. ..... ..... 4

Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991) ...................... .. .... .... . ....................................................... .. 15

ii


McBride v. Dow and Pharmaceuticals, Inc., 717 F. 2d 1460 (D.C. Cir. 1983) ..................................................................................................... 5

Milkovich v. Lorain Journal Co., 497 U.S.l (1990) .......................... .... ........... .... ..... .. .. ... ... ............ ... ..... .... ..... .... ...... .................. 6,9,12

Olinger v. Am. Sav. & Loan Ass 'n, 409 F.2d 142 (D.C. Cir. 1969) ............................................................... . .. .. . ...... 5,16

Oilman v. Evans, 750 F.2d 970 D.C. Cir. 1984) ........... ..... ............................................................ .. ........ ......... .. 1,4,11

Partington v. BUfliosi,

56 F.3d 1147 (91

Cir. 1995) .... .. ... .. ....................... .. ... ... ... ................ .. .............. .... ... .... ................ 7,9

Phantom Touring, Inc. v. Affiliated Publications, sl •

953 F.2d 724 (1 Clr. 1992) ............................. .... ........ ... ....... ........... .......... .................................. .. 7

Rosenblatt v. Baer, 383 U.S. 75 (1966) ........................................................... .. .............................. 16

St. Amant v. Thompson, 390 U.S. 727 (1968) .... .. .. ... . . . . .......... . .. .. ......................... . ..... . .. . .. .... . .. .... ............ 15

Waldbaum v. Fairchild Publ 'ns, Inc., 627 F.2d 1287 (D.C. Cir. 1980) ........ ...... ... ................................................................. .................. 13

White v. Fraternal Order of Police, 909 F.2d 512 (D.D.C. 1990) ..................................... ...................................................................... 5

WolfJv. Middlebrooks, 256 Ga.App. 268, 568 S.E.2d 88 (2002) ............. .. ....... ...... ...... .... ..... ...... ........................................ 5

Restatements and Treatises

Restatement (Second) Of Torts § 614(2) ......................................................................................... 5

Restatement (Second) Of Torts § 614(i) (1977) .. ......... ........ ... ..... .... ... ............................................ 4

F. Harper, The Law o/Torts § 5.4 (1986) ............... .. .................................................... .................. 5

97643

111


INTRODUCTION

Plaintiff Vasser Abbas ("Plaintiff' or "Abbas") alleges that Foreign Policy Group, LLC

and Jonathan Schanzer (collectively "Defendants") libeled him in a June 5, 2012 article in

Foreign Policy magazine. The article is headlined "The Brothers Abbas" "Are the sons of the

Palestinian president growing rich off their father's system?"

Defendants' motion to dismiss Plaintiffs Complaint IS based on material

mischaracterizations of Plaintiffs theory of libel and of the libelous article. Defendants do not

dispute that the article poses "libelous questions." Rather, the gist of their defense is that "the

Commentary leaves those questions unanswered-inviting readers to form their own opinions

based on the facts reported throughout the balance of the piece." (Defs' Mem. Of Law at p. 1).

Plaintiff submits that this argument does not pass the straight face test. The flaw running

throughout Defendants' motion is that the motion depends on Defendants mischaracterizing the

language used in the Schanzer article, the context of the language, and the extent to which the

language is verifiable. See Oilman v. Evans, 750 F.2d 970, 979 (D.C. Cir. 1984) (en banc). In

considering the parties' arguments, the Court should "draw on its judicial experience and

common sense." See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Plaintiff submits that

Defendants' characterizations do not pass muster under any reasonable reading of the Schanzer

article.

Plaintiffs libel claim is based on the author's assertion that "new details are emerging" as

to how Plaintiff has grown wealthy, 'enriching himself at the expense of regular Palestinians

and even U.S. taxpayers.' Read in context, the Schanzer article's libelous questions read as

assertions of the false fact that Plaintiff is wrongfully and possibly even criminally getting rich

off of his "father's system." The new "details" in the article concerning his "father's system


include allegations that his father "has socked away $100 million in ill-gotten gains" and

allegations by several unnamed Palestinians that critics of Plaintiffs father allegedly fear

"retribution by P A [Palestinian Authority] security officers, who have apprehended journalists

and citizens for openly challenging President Abbas's authority."

Unlike the questions at issue in the cases relied on by Defendants, the questions here can

be proven true or false by an examination of the financial records of Plaintiff s business ventures.

As to the fault issue, Plaintiff disputes Defendants' claim that he is a limited purpose

public figure, who must establish that Defendants acted with actual malice in publishing the

Schanzer article. Plaintiff acknowledges that there is a public controversy concerning allegations

of corruption within the Palestinian Authority. The question is whether Defendants can bootstrap

the allegations of corruption contained in the Schanzer article concerning Plaintiff to the public

controversy concerning the Palestinian Authority so as to make that part of the public

controversy. The article attempts to make a similar bootstrapping argument to support the

rhetorical accusation that Plaintiff is profiting from P A corruption with no factual support other

than the vague claims of the author's unidentified sources.

While Plaintiff does not have to establish actual malice, sufficient evidence exists to

permit the conclusion that Defendants entertained serious doubts as to the truth of the libel in the

Schanzer article such that their publication of the article evinces a reckless disregard for the truth

or falsity of the article's contents. At this pleading stage, the evidence of, at a minimum,

Defendants' recklessness is that neither the article itself, nor any of the several articles and

sources upon which Mr. Schanzer relied for his libelous innuendo, even remotely support the

libel. To the contrary, as Defendants acknowledge in a different context, the sources cited by Mr.

Schanzer support Plaintiffs denial that there is any evidence of wrongdoing connected with the

2


contract work obtained by Plaintiff (See Defs' Mem. Of Law at p. 23 and exhibits referenced

therein).

In the final analysis, the support for Defendants' libelous innuendo is nothing more than

Mr. Schanzer's 'whispered' discussions with several Palestinians, which itself, for all the article

reveals, is nothing more than unsubstantiated libelous innuendo. The allegation that Plaintiff is

growing rich off of his father's alleged corruption is a very serious charge and is very damaging

to Plaintiffs reputation in a Middle Eastern community-much like ours-where reputation

means everything.

Finally, on a motion to dismiss, a court generally must accept as true all of the factual

allegations contained in the complaint and grant the Plaintiff the benefit of all inferences that can

be derived from the facts alleged. If statements appear to be at least capable of a defamatory

meaning, whether they are defamatory and false are questions of fact to be resolved by a jury.

And regardless of whether the Court determines that Plaintiff must establish that Defendants

were negligent or reckless, either question also presents a fact issue for a jury.

ARGUMENT

I. Motion to Dismiss Standard

In considering a motion to dismiss for failure to state a claim, a court generally "must

accept as true all of the factual allegations contained in the complaint," Erickson v. Pardus, 551

U.S. 89,94,127 S.Ct. 2197,167 L.Ed.2d 1081 (2007), and "grant plaintiff[] the benefit of all

inferences that can be derived from the facts alleged." Kowal v. MCI Communications Corp., 16

F.3d 1271, 1276 (D.C.Cir.1994). The Court will assume that the facts alleged by Plaintiff are

true, and any ambiguities or doubts concerning the sufficiency of the claim must be resolved in

favor of the Plaintiff. See Doe v. United States Dep't of Justice, 753 F.2d 1092, 1102

3


(D.C.Cir.1985). In addition, the court "may consider only the facts alleged in the complaint, any

documents either attached to or incorporated in the complaint[,] and matters of which ... judicial

notice" may be taken. EEOC v. St. Francis Xavier Parochial School, 117 F.3d 621, 624

(D.C.Cir.1997).

At the outset, Defendants set the table with the wrong cases. When argumg that

defamation cases against the news media should be summarily disposed of as soon as possible,

Defendants primarily rely on inapplicable summary judgment (not motion to dismiss) cases.'

Similarly, when arguing that this Court should "err on the side of nonactionability" because this

case implicates First Amendment concerns, Defendants rely on a summary judgment case

following one year of discovery, where the Circuit Court of Appeals made that statement in a

case involving a public figure and in the limited context of when "the question of truth or falsity

is a close one." See Defs' Mem. Of Law at p. 4 (citing Liberty Lobby, Inc. v. Dow Jones & Co.,

838 F.2d 1287, 1292 (D.C. Cir. 1988)).

II. A libelous charge is just as effectively harmful, and therefore actionable per se, whether the harmful effect results from words that directly and unequivocally make a charge or whether it results from words that do so indirectly and by inference.

In a libel case, it is the role of the court to determine whether the challenged statement is

"capable of bearing a particular meaning" and whether "that meaning is defamatory."

Restatement (Second) Of Torts § 614(i), at 311 (1977); see McBride v. Merrell Dow and

Pharmaceuticals, Inc., 717 F.2d 1460, 1463 (D.C.Cir.1983). In making this determination, a

court is to consider both the words themselves and the entire context in which the statement

occurs. See Oilman v. Evans, 750 F.2d 970, 982-83 (D.C.Cir.1984) (en bane), cert. denied, 471

I See Defs' Mem. Of Law at pp. 2-3 (citing Mar-Jac Poultry, Inc. v. Katz, 773 F. Supp.2d 103, 111 (D.D.C. 2011), Coles v. Wash. Free Weekly, Inc., 881 F.Supp. 26 (D.D.C. 1995)).

4


u.s. 1127 (1985).

Under District of Columbia law, a statement is defamatory "if it tends to injure [a]

plaintiff in his trade, profession or community standing, or lower him in the estimation of the

community." Olinger v. Am. Say. & Loan Ass'n, 409 F.2d 142, 144 (D.C.Cir.1969). The

publication must be considered "as a whole, and in the sense in which it would be understood by

the readers to whom it was addressed." Afro-American Publ'g Co. v. Jaffe, 366 F.2d 649, 655

(D.C.Cir.1966) (en banc). See White v. Fraternal Order of Police, 909 F.2d 512, 520 (D.D.C.

1990) ("The usual test applied to determine the meaning of a defamatory utterance is whether it

was reasonably understood by the recipient of the communication to have been intended in the

defamatory sense.") (quoting F. Harper, et aI., The Law of Torts § 5,4 (1986» (emphasis

omitted).

If statements appear to be "at least capable of a defamatory meaning, whether they [are]

defamatory and false are questions of fact to be resolved by the jury." Moss, 580 A.2d at 1023

(citing Olinger, 409 F.2d at 144). The jury's proper function, in tum, is to determine whether a

statement, held by the court to be capable of a defamatory meaning, was in fact attributed such a

meaning by its readers. Restatement (Second) q(Torts § 614 (2).

A statement can be defamatory either because of what is expressly stated or because of an

implied meaning. Defamation by implication "stems not from what is literally stated, but from

what is implied." White v. Fraternal Order of Police, supra, 909 F.2d at 518.

A plaintiff can assert a defamation per se claim even when the alleged defamation is by

implication. "A slanderous charge is actionable per se, whether the words directly or indirectly,

by intimation or innuendo, contain slander." Wolff v. Middlebrooks, 256 Ga.App. 268, 568

S.E.2d 88, 90 (2002) (citation omitted). "The slanderous charge is just as effectively harmful,

5


and therefore actionable per se ... whether the harmful effect results from words which directly

and unequivocally make a charge or whether it results from words which do so indirectly or by

inference." Id. "It is the harmful effect of defamatory language as it is understood which renders

it actionable per se, and not its directness or unequivocal nature." Id.; see also Harcrow v.

Struhar, 236 Ga.App. 403, 511 S.E.2d 545, 546 (1999) ("Whether stated directly or by

implication or innuendo, it is libelous per se to falsely state that a person is guilty of a crime. ").

Here, the libelous charge is not any less harmful because the author deftly made his

serious accusations with the journalistic device of putting them in a rhetorical question rather

than a declaration. Doing so should not insulate an author from the damage caused.

III. Read in context, the accusatory questions posed by the Schanzer article can reasonably be read as assertions of false facts.

Defendants contend that the questions "Are the sons of the Palestinian president growing

rich off their father's system?" and "Have [the Brothers Abbas] enriched themselves at the

expense of regular Palestinians and even U.S. taxpayers?" "cannot be read as assertions of facts,

much less false facts .. . rather, they are an invitation to ask. .. " (Defs' Mem. Of Law at p.8).

Defendants further claim that "[q]uestions have seldom been the subject of successful

defamation actions, and for good reason-like statements of opinion, they are rarely amenable to

interpretation as assertions of fact and are almost never 'susceptible of being proved true or

false.'" (Defs' Mem. Of Law at p. 5 quoting Milkovich v. Lorain Journal Co., 497 U.S.l, 21

1990)). Defendants acknowledge, however, that a question can be defamatory when it may

reasonably be read as an assertion of a false fact. (Defs' Mem. Of Law at p. 7-8). See Chapin v.

Knight-Ridder, Inc., 993 F.2d 1087 (4th Cir. 1993).

Read in context, the Schanzer article's libelous questions may be read as assertions of the

false fact that Plaintiff is wrongfully and possibly criminally getting rich off of his "father's

6


system." The new "details" in the article concerning his "father's system" include allegations that

his father "has socked away $100 million in ill-gotten gains" and allegations by several

unidentified Palestinians that critics of Plaintiffs father allegedly fear "retribution by P A security

officers, who have apprehended journalists and citizens for openly challenging President Abbas's

authority. "

Unlike the questions at issue in the cases relied on by Defendants, the questions here can

be proven true or false by an examination of the financial records of Plaintiffs business ventures.

None of the principal cases relied on by Defendants support their argument that this

Court should dismiss Plaintiffs Complaint at the pleading stage. Two of the four cases were

summary judgment cases (Partington v. Bugliosi, 56 F .3d 1147 (9th Cir. 1995) and Beverly Hills

Foodland, Inc. v. United Food & Commercial Workers Union, Local 655,39 F.3d 191 (8th Cir.

1994)) and one was a 12(b)(6) motion following discovery (Chapin v. Knight-Ridder, Inc., 993

F.2d 1087 (4th Cir. 1993)).

The one case that was a Fed.R.Civ.P. 12(c) motion on the pleadings involved statements

in a theater column that the Plaintiffs musical comedy production of "Phantom of the Opera"

was a "fake" and "phony" and questioned whether Plaintiff was "trying to score off the success

of Andrew Lloyd Webber's 'Phantom.'" See Phantom Touring, Inc. v. Affiliated Publications,

953 F.2d 724, 729 (1 st Cir. 1992). The "fake" and "phony" statements were "unprovable, in the

Court's view, since those adjectives admit of numerous interpretations. Id. at 728. But most

importantly, the Court concluded that "[t]he sum effect of the format, tone and entire content of

the articles is to make it unmistakably clear that [the author] was expressing a point of view." Id.

at 729. That is not the case here where the sum effect of the format, tone and entire content of the

Schanzer article conveys the impression that the author is reporting a fact-based news item with

7


the newsworthy nature of the article enhanced by the author's claimed access to informed

unidentified Palestinian sources.

In addition to the materially different procedural posture of Chapin and Beverly Hills,

supra, those cases are inapplicable here because in Chapin, the Fourth Circuit held that the

phrase "hefty mark-up" is too subjective a phrase to be verifiable (993 F.2d at 1093) and in

Beverly Hills, the Eighth Circuit reached a similar conclusion concerning the term "unfair."

Beverly Hills, 39 F.3d at 196.

In Chapin, following discovery, the statements were proven to be not defamatory because

they were either true or opinions that could not be proven true or false. 993 F.2d at 1093-99.

Unlike the Schanzer article, the article in Chapin "advance[d] alternative answers to the

questions it raise[d], presenting both favorable and unfavorable views ... [without] ultimately

adopt [ing] any particular answer as correct . . . Language of ambiguity and imprecision

permeate[d] the article, significantly coloring its tone ... " Id. at 1098. No such "language of

ambiguity and imprecision" permeates the Schanzer article, nor does the author advance any

non-defamatory answers to his admittedly libelous questions.

Finally, the summary judgment decision in Partington, supra, does not support

Defendants' motion because the allegedly defamatory book and docudrama at issue in that case

are so obviously unlike the Schanzer article in this case. In Partington, the allegedly defamatory

statements at issue involved criticisms of the Plaintiffs trial strategies in one of the two Palmyra

Island murder trials by the Defendant attorney who had tried a companion murder case and

prevailed. The Plaintiff alleging defamation had lost. The crux of the decision was the Ninth

Circuit's conclusion that "the book's general tenor makes clear that Bugliosi's observations about

Partington's trial strategies, and the implications that Partington contends arise from them,

8


represent statements of personal viewpoint, not assertions of an objective fact." 56 F.3d at 1153.

The allegedly defamatory question at issue there also was more balanced, like the views in

Chapin, than Defendants' partial quote indicates. See Defs' Mem. Of Law at p. 7 and Partington,

56 F.3d at 1151 n. 2 ("Had Walker's defense lawyers not read the theft-trial transcripts? Our copy

had ended up in a warehouse; perhaps theirs had, too." (Italicized language omitted by

Defendants).

Again, the Schanzer article contains only the libelous accusations.

IV. Even if the defamatory questions are deemed to be OpInIOnS, they are actionable under Milkovich because they "contain provably false factual connotations. "

Plaintiff submits that the Schanzer article reads as an explanatory essay or a news story

purportedly shedding new light on an old story involving allegations of corruption in the

Palestinian Authority and not a "mere opinion" piece as Defendants contend now in defending

against Plaintiffs defamation claim. (See Defs' Mem. Of Law at p. 9) (emphasis by Defendants).

The article's reference to 'new emerging details' signals to the average reader that this is a

reporting piece, not a mere opinion piece, as does the citation throughout the article to

unidentified Palestinian sources.

However, as Defendants acknowledge, even if the libelous questions are deemed to be

the author's opinions, they would be actionable in this case if they "contain a provably false

factual connotation." Milkovich v. Lorain Journal Co., 497 U.S.1, 20 (1990); see also Defs'

Mem. Of Law at p. 9 n. 5). They do, in fact, contain provably false factual connotations. As

noted above, whether Plaintiff is "growing rich off [his] father's system"-that is, whether he is

growing rich from alleged corruption in the Palestinian Authority is certainly a provable fact by

investigating Plaintiffs relevant financial records.

9


Defendants argue that the defamatory statements cannot be proven true or false because

"it would be impossible to prove that Plaintiff grew wealthy solely because of his father" and

conversely "it would be impossible to disprove the possibility that Plaintiffs success, at least in

part, is attributable to his father." (Defs' Mem. Of Law at p. 10). These "strawman" inquiries are

obviously not relevant because they do not address the alleged libel. The question is not whether

Plaintiff is growing wealthy solely because of his father or whether his success is, at least in part,

attributable to his father because of his father's connections, but rather whether Plaintiff is

growing rich from the alleged corruption in the Palestinian Authority.

Defendants also rely on the principle that "where an author sets forth the facts upon

which his interpretation is based, leaving the reader free to form his or her own opinions, the

author's opinion is not actionable" and the related principle that "under D.C.'s fair comment

privilege, even if the facts are not disclosed, so long as the underlying facts are available to the

public, the author's comment upon those facts is not actionable." (Defs' Mem. Of Law at pp. lO

Il (citing cases)). Based upon these principles, Defendants claim that the "opinions expressed by

the writer" are not actionable because the facts upon which the article is based "are clearly

available to the public, and indeed sources for those facts are hyperlinked in the Commentary

itself." (Id. at p. 11).

Again, Defendants are barking up the wrong tree, referencing the wrong facts. If the

libelous "facts" upon which the Schanzer article is based are not "clearly available to the public,"

then these arguments fail. While the article does cite and hyperlink to sources regarding

Plaintiffs businesses, the article's reference to these businesses is not the basis for Plaintiffs libel

claim. Rather, Plaintiffs libel claim is based on the author's assertion that "new details are

emerging" as to how Plaintiff has grown wealthy, 'enriching himself at the expense of regular

10


Palestinians-and even U.S. taxpayers.' The only "new details" in the article relate to the author's

reporting on his conversations with "a former Palestinian advisor" and "several Palestinians"

during a research trip to Ramallah in 2011. Those alleged sources are unknown to the public.

And, very importantly, those sources are the only thing "connecting" (and Plaintiff uses that

word guardedly) the prior reports regarding Plaintiffs wealth and Defendants' defamatory

innuendo that the wealth is attributable in some measure to corruption in the Palestinian

Authority.

Finally, Defendants argue that the libelous questions are not actionable because the facts

contained in the article provide a basis for a reader to draw a wide range of contrary conclusions,

running the gamut from Plaintiff being a self-made man to his exploiting his father's system for

personal gain and anything in between. Defs' Mem. Of Law at pp. 11-12. In this regard,

Defendants state, for example, that the article "points out that Plaintiff does not use the surname

'Abbas' in his biography, which might well be interpreted as a decision by Plaintiff not to exploit

his father's name." Id. at p. 12 (emphasis by Defendants). That might be so if the article had

stated it that way. However, consistent with the libelous innuendo that is the main theme of the

article, the article actually states that Plaintiff "goes by the alias Yasser Mahmoud" in his

biography, thus implying that Plaintiff is trying to hide his connection to his father for improper

motives. (Exhibit A at p. 1) (emphasis added). Swindlers use aliases.

This argument typifies the fatal flaw in Defendants' motion, which is that the motion

depends on Defendants mischaracterizing the language used in the Schanzer article, the context

of the language, and the extent to which the language is verifiable. See Dllman v. Evans, 750

F.2d 970, 979 (D.C. Cir. 1984) (en bane). In considering the parties' arguments, the Court should

"draw on its judicial experience and common sense." See Ashcroft v. Iqbal, 556 U.S. 662, 679

11


(2009). Plaintiff submits that Defendants' characterizations do not pass muster under any

reasonable reading of the Schanzer article.

V. Defendants' arguments regarding the purported "supporting allegations" are irrelevant because the allegations referenced are not the supporting allegations.

Defendants argue that Plaintiffs supporting allegations are based on portions of the

Schanzer article that are not capable of defamatory meaning, not materially false and/or not of

and concerning Plaintiff. Defs' Mem. Of Law at pp. 13-21. For this 8-page argument,

Defendants challenge several purportedly "supporting allegations" in the Complaint claiming

that they fail to support a defamation claim for one of the above reasons.

Here again, Defendants are barking up the wrong tree-this time using "strawman"

"supporting allegations" in an effort to divert attention from the actual allegations of libel upon

which Plaintiffs libel claim is based. While Plaintiff s Complaint does dispute various factual

allegations in the Schanzer article, the principal allegations supporting Plaintiffs libel claim are

the paragraphs concerning the article's admittedly libelous questions, the allegations that the

article purports to provide "new details" regarding those libelous questions, and the allegations

concerning the information provided by Mr. Schanzer's unidentified sources, which are the only

"new details" used by Mr. Schanzer to support the libelous implication of his libelous

questions-namely, that Plaintiff has wrongfully enriched himself at the expense of regular

Palestinians and even U.S. taxpayers. (See, e.g., Complaint at 10, 13, 15,37,41).

VI. The Complaint alleges that Defendants acted with the requisite fault.

Plaintiff disputes Defendants' claim that he is a limited purpose public figure, who must

establish that Defendants acted with actual malice in publishing the Schanzer article. To prevail

on this claim, Defendants must establish that: (1) there is a pre-existing public controversy, (2)

Plaintiff has played a non-trivial role in the controversy, and (3) the alleged defamatory

12


statements are germane to Plaintiffs participation in the controversy. See, e.g., Waldbaum v.

Fairchild Publ'ns, Inc., 627 F.2d 1287,1296-98 (D.C. Cir. 1980).

Plaintiff acknowledges that there is a public controversy concernmg allegations of

corruption within the Palestinian Authority. The question is whether Defendants can bootstrap

the specific allegations of corruption contained in the Schanzer article concerning Plaintiff to the

existing broader general public controversy concerning the Palestinian Authority so as to make

that part of the public controversy. The article attempts to make a similar bootstrapping argument

to support the rhetorical accusation that Plaintiff is profiting from P A corruption with no factual

support other than the vague claims of the author's unidentified sources.

This is not a situation like the cases relied on by Defendants where the alleged limited

purpose public figure is the actual maker of the public controversy or inserts himself into a

public controversy or uses his influence to advocate and practice controversial policies. (See

Defs' Mem. Of Law at pp. 23-26 and cases cited therein). Rather, this is a situation where others,

most notably Mr. Schanzer and his purported sources, are widening a public controversy to

slander a public figure's family and a member of the family is simply defending himself against

the slander. Mr. Schanzer's article and his comments before Congress demonstrate that Mr.

Schanzer is the one making the public controversy in this case.

Under these circumstances, a party does not become a limited purpose public figure by

virtue of defending himself from the slanderous claims by the controversy maker such that he

must prove actual malice to state an actionable libel claim. See Hutchinson v. Proxmire, 443

u.s. Ill, 134-36 (1979) (concluding that "[c]learly those charged with defamation cannot by

their own conduct, create their own defense by making the claimant a public figure" and

rejecting defamation defendant's claim that a general "concern about public expenditures"

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constituted a sufficient controversy to make the claimant a public figure because otherwise

everyone who received or benefited from myriad public grants could be classified as a public

figure).

In addition, the fact that Plaintiff has done much work for the Palestinian people,

including ensuring the repatriation to the Palestinian National Fund of $45 million held by

Orascom Telecom and ensuring the resumption of U.S. and Canadian aid to the UN Relief and

Works Agency for Palestinian Refugees, has not, contrary to Defendants' claim, "necessarily

implicated him in the controversy surrounding the Palestinian Authority." (Defs' Mem. Of Law

at p. 24). The controversy surrounding the PA involves allegations that the money in the PA's

coffers is being pilfered. Plaintiff s involvement with the PAis just the opposite-that is, adding

to the coffers, not pilfering them.

In sum, Plaintiff is not a limited purpose public figure in this case. Plaintiff submits that a

contrary finding would turn the limited-purpose-public-figure rule on its head because the

purported pre-existing public controversy at issue is a controversy largely made by the alleged

libeling party, the Plaintiffs involvement in the controversy is limited to defending himself from

the defamatory allegations, and the alleged defamatory statements that are germane to the

controversy are part and parcel of the controversy created by the libeling party.

VII. While Plaintiff does not have to establish actual malice, sufficient evidence exists to permit such a finding in this case.

Plaintiff disputes that he must show actual malice because, as discussed above, he is not a

limited purpose public figure in this case. Nonetheless, Plaintiff submits that sufficient evidence

exists to support a finding of actual malice. The same evidence establishes Defendants'

negligence.

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To establish actual malice, the question is whether Defendants entertained serious doubts

as to the truth of the libel contained in the Schanzer article such that their publication of the

article evinces a reckless disregard for the truth or falsity of the article's contents. See St. Amant

v. Thompson, 390 U.S. 727, 731 (1968). As Defendants acknowledge, actual malice should "not

be confused with the concept of malice as an evil intent or motive arising from spite or ill will."

Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510 (1991). See also Defs' Mem. Of Law

at p. 29.

At this pleading stage, the evidence that Defendants entertained serious doubts as to the

truth of the libel contained in the Schanzer article is that neither the article itself, nor any of the

several articles and sources upon which Mr. Schanzer relied for his libelous innuendo, even

remotely support the libel. To the contrary, as Defendants acknowledge in a different context, the

sources cited by Mr. Schanzer support Plaintiffs denial that there is any evidence of wrongdoing

connected with the contract work obtained by Plaintiff. (See Defs' Mem. Of Law at p. 23 and

exhibits referenced therein). The allegations in the complaint set forth the ground work for the

discovery that will show malice under the standards required by the court.

The allegations in the complaint provide sufficient facts for the court to rule that actual

malice has been adequately pled, and may be proven, as to Defendants, and Defendant Schanzer

in particular. The pleading provides a strong indication that the motive here was to use the mere

fact that Plaintiff has successful businesses to support the libelous accusations of corruption

within the government of his father, President Abbas. Asking the reader to consider whether a

son is growing rich off his father's government and enriching himself at the expense of an

impoverished people who rely on aid from other countries and US taxpayers will certainly

15


"tend[] to injure plaintiff in his trade, profession or community standing or lower him in the

estimation of [his] community." See Olinger, supra, 409 F.2d at 144. That is the legal standard.

At this point, we are only at the pleading stage, and all that Plaintiff asks is that

Defendants' motion to dismiss be denied and that he be allowed to clear his good name by

presenting himself for deposition and opening up his books for inspection. Plaintiff also seeks

discovery of Defendants so that he can show the malice that Defendants argue cannot be proven.

In sum, the support for Defendants' libelous innuendo is nothing more than Mr.

Schanzer's 'whispered' discussions with several Palestinians, which itself, for all the article

reveals, is nothing more than unsubstantiated libelous innuendo. The scurrilous allegation that

Plaintiff is growing rich off of his father's alleged corruption is a very serious charge and is very

damaging to Plaintiffs reputation in the Middle East where reputation means everything. See

Rosenblatt v. Baer, 383 U.S. 75, 86, 92-93 (1966) ("The right of a man to the protection of his

own reputation from unjustified invasion and wrongful hurt reflects no more than our basic

concept of the essential dignity and worth of every human being-a concept at the root of any

decent system of ordered liberty .... The destruction that defamatory falsehood can bring is, to

be sure, often beyond the capacity to redeem. Yet, imperfect though it is, an action for damages

is the only hope for vindication or redress the law gives to a man whose reputation has been

falsely dishonored.") (Justice Stewart, concurring opinion).

But even worse is the possibility that the Schanzer article's unsubstantiated, reckless

accusations could be life threatening for Plaintiff and his family in a region where there is great

poverty and an angered member of the community might be incited to murder. Defendant

Schanzer, who professes intimate familiarity with the Palestinians and their culture, certainly is

aware or should have been aware of the possible consequences of his reckless reporting.

16


The Court may wonder why Mr. Schanzer would be making such entirely unsubstantiated

serious libelous accusations. Discovery will expose his motives and the at best reckless disregard

of Defendant FP for publishing an article with the potential to cause so much harm and place its

target in such danger.

CONCLUSION

For the foregoing reasons, the Court should deny Defendants' motion to dismiss.

Dated: December 10, 2012

97484

17

Respectfully SUb~

M41JiFSENPC Louis G. Adolfsen Rania Shoukier Michael F. Panayotou S. Dwight Stephens (Bar No. 406176)

233 Broadway 10th Fl New York, New York Telephone: (212) 238-8900 Facsimj Ie: (212) 238-8999 E-Mail: [email protected] E-Mail: [email protected] ... -Mail: [email protected] E-Mail: [email protected]


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