Libel, Time, Brexit, and Monaco

An allegedly bogus dossier on plaintiff was sent by defendant to a third party in 2003 -- and then hit the news in 2017. Can plaintiff sue for libel?


From Chandler v. Berlin, decided today by District Judge Amit Mehta (moved text noted with curly braces):

Defendant Donald Berlin is a private investigator who, in February 2003, prepared what Plaintiff Christopher Chandler terms a "Pitch." {Berlin prepared the document … for one Robert Eringer, a resident of Monaco who had ingratiated himself with Prince Albert II of Monaco. Eringer had told the Prince that he could help investigate people living in Monaco who were suspected of engaging in financial improprieties, including Plaintiff and his brother.} According to Plaintiff, the Pitch is a 134-page document that contains a host of false assertions, accusing Plaintiff and his brother of engaging in various criminal activities, such as money laundering and having ties to organized crime in Russia and Russian intelligence.

Apparently, for well over a decade, the contents of the Pitch did not see the light of day. But then in November 2017[,] … Eringer, sent a portion of the Pitch to members of the British media. This disclosure caused a firestorm of negative press accounts, reporting that Plaintiff was involved in money laundering for Russian interests and espionage. In this action for libel per se, Plaintiff alleges that Berlin and his various affiliated companies are liable for the harm caused by their presenting the Pitch to Eringer in 2003, as well as Eringer's republication of portions of the Pitch in 2017.

Defendants now move to dismiss or, in the alternative, for summary judgment. Treating Defendants' motion as one for summary judgment, the court grants the motion insofar as Plaintiff claims that Defendants are liable for the harm arising from the 2017 republication by Eringer. Defendants could not have reasonably foreseen in 2003 that Eringer would republish the Pitch fourteen years later in 2017. {Defendants did not have any indication in 2003 that the information contained in the Pitch would become newsworthy nearly a decade-and-a-half later. Eringer sent the Pitch to the British media only after Plaintiff became involved in public debate about "Brexit."}

With respect to the original publication of the Pitch in 2003, on the present record the court cannot find that such claim is time barred. There remains a genuine dispute of material fact as to when Plaintiff reasonably could have discovered the alleged libelous matter in the Pitch and Defendants' role in its creation.

The court, therefore, declines to enter summary judgment in Defendants' favor as to the original publication of the Pitch in 2003. The court, however, will not allow complete discovery on the merits to proceed at this time. Instead, the parties may take limited discovery on the narrow issue of when Plaintiff reasonably could have learned about Defendants' creation of the Pitch, so as to commence the one-year limitations period. The court wishes to satisfy itself that Plaintiff's libel claim as to the 2003 publication of the Pitch is timely before permitting full discovery.

You can also see the (redacted) Complaint in the case.

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  1. That pretty much sucks.

    I predicted many years ago that for any possible outcome the probability that some disgruntled bureaucrat had predicted any outcome was near unity since there were effectively an infinite number of disgruntled bureaucrats.

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  2. I’m going to start calling all my memos “dossiers.” It just sounds smarter.

  3. The memo was published in 2003. Many years later the plaintiff became a public figure. Is plaintiff considered a private figure based on his status at the time of the alleged libel, or a public figure based on his status today? If his status today wasn’t reasonably foreseeable in 2003, does that affect the question?

  4. The memo was published in 2003. Many years later the plaintiff became a public figure. Is plaintiff considered a private figure based on his status at the time of the alleged libel, or a public figure based on his status today? If his status today wasn’t reasonably foreseeable in 2003, does that affect the question?

    1. Good questions. I hope EV answers them…I suspect that lots of us are wondering about this. It seems like an issue that would not be too uncommon.

  5. For defamation purposes, Chandler’s main defamation target surely ought to be Eringer, for republication in 2018, on which limitations hasn’t run.

    But Chandler hasn’t sued Eringer. Eringer’s website says that he “grew up in West Hollywood, Beverly Hills, and London, England,” and that “[o]n 27 March 2013, Eringer bought a bar called Palmieri’s on Santa Barbara’s westside,” which strongly suggests that he is a resident of California, which leaves me wondering why he’s not joined as an additional defendant.

    I’m also wondering if there was an anti-SLAPP motion filed, and if not, why not.

    @ ReaderY: The opinion doesn’t go into anyone’s status, or lack thereof, as a “public figure,” but is instead focused on the statute of limitations defense.

  6. @ ReaderY: But if I were to guess: My guess would be that if any defendant argued that Chandler is a public figure for purposes of Chandler’s defamation claim against that defendant, the court would consider only Chandler’s status as of the time that defendant published the allegedly defamatory statements. There’s probably caselaw on this point, but I haven’t attempted to research it; but it’s the kind of thing Prof. V might know, and have cites for, off the top of his head.

  7. FWIW, Chandler’s complaint alleges that he is a citizen of New Zealand currently living in the United Arab Eremites, but he does not affirmatively invoke either New Zealand or UAE defamation law. However, unless persuaded that some other jurisdiction’s substantive law on defamation ought to apply, a federal court sitting in the District of Columbia will apply D.C. substantive law.

    The fact pattern here would make a moderately good hypothetical in three or four different law school courses, including federal procedure, torts, constitutional law, and conflicts of laws.

    1. “United Arab Eremites”

      They’re hermits?

  8. I can’t imagine the damages will be too high for the 2003 publication … SJ for the defendant on the 2017 publication should end this case.

    1. That’s what I was thinking. When Berlin gave Eringer the memo in 2003, Eringer presumably did not know (or barely knew) Chandler. So that information, even if if were libelous (and the court will assume it was), I don’t see how it caused any harm to Chandler. After all, you could give me a juicy story about someone I don’t know (or someone completely invented), and, if I never encounter the person, they are really no worse off for it.

      I suppose this sort of situation is going to be more common as more data and data is retained for longer. Classmate A tells some story about Classmate B to Classmate C. C doesn’t care and ignores it (or maybe it wasn’t considered out-of-bounds for the time). B eventually becomes successful (whether or not a public figure). One day, C goes through old emails, stumbles on the libelous message, and forwards it to other people, severely damaging B’s reputation. Now imagine C is judgment proof, but A has insurance and significant wealth. B is going to want to sue A.

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