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Adelson v. Harris

United States Court of Appeals, Second Circuit

December 19, 2014

SHELDON G. ADELSON, Plaintiff-Appellant, --
v.
-- DAVID A. HARRIS, MARC R. STANLEY, and NATIONAL JEWISH DEMOCRATIC COUNCIL, Defendants-Appellees

Argued August 28, 2014.

As corrected December 23, 2014.

Page 804

Plaintiff-Appellant Sheldon Adelson appeals from the September 30, 2013 order of the United States District Court for the Southern District of New York (Oetken, J.) dismissing his defamation suit. Two significant and unresolved questions of Nevada law may be determinative of this appeal: (1) whether a hyperlink to source material about judicial proceedings suffices in an online petition for purposes of applying Nevada's common law fair report privilege; and (2) whether Nevada's anti-SLAPP statute, as it existed prior to the 2013 amendments, covered speech that seeks to influence an election but that is not addressed to a government agency. Accordingly, we certify these questions to the Nevada Supreme Court and reserve decision.

James R. Ferguson, Mayer Brown LLP, Chicago, IL (Michele L. Odorizzi, Demetrios G. Metropoulos, Mayer Brown LLP, Chicago, IL; Andrew L. Frey, Mayer Brown LLP, New York, NY; L. Lin Wood and Jonathan D. Grunberg, Wood, Hernacki & Evans, LLC, Atlanta, GA, on the brief), for Plaintiff-Appellant.

Lee Levine (Seth D. Berlin, Gayle C. Sproul, Chad R. Bowman, Rachel F. Strom, on the brief), Levine Sullivan Koch & Schulz, LLP, New York, NY, for Defendants-Appellees.

Before: CALABRESI, RAGGI, and CHIN, Circuit Judges.

OPINION

Page 805

GUIDO CALABRESI, Circuit Judge :

This case raises two significant and unresolved questions of Nevada statutory and common law. First, does a hyperlink to source material about judicial proceedings in an online petition suffice for purposes of applying the common law fair report privilege? Second, did Nevada's anti-strategic litigation against public participation (" anti-SLAPP" ) statute, Nev. Rev. Stat. § § 41.635-41.670, as that statute was in effect prior to the most recent amendments in 2013, cover speech that seeks to influence an election but that is not addressed to a government agency? Because the issues are important, and the answers are unclear and may be determinative of the instant appeal, we reserve decision and certify these questions to the Nevada Supreme Court.

BACKGROUND

Plaintiff-Appellant Sheldon Adelson brought a defamation action against Defendants-Appellees National Jewish Democratic Counsel (" NJDC" ), its Chair Marc Stanley, and its President and CEO David Harris (collectively, " appellees" ) based on statements that they made in an online petition and press release. The United States District Court for the Southern District of New York (Oetken, J.) dismissed Adelson's action under both Rule 12(b)(6) and the Nevada anti-SLAPP statute. See Adelson v. Harris, 973 F.Supp.2d 467 (S.D.N.Y. 2013). Adelson appeals from that dismissal.

Facts

Appellees' online statements were made in the context of the 2012 presidential election cycle. During that cycle, Adelson spent large sums of money to support Republican candidates, financially backing the presidential bids, first, of Speaker Newt Gingrich and, later, of Governor Mitt Romney. On July 3, 2012, NJDC posted on its website a petition to pressure Governor Romney to stop taking Adelson's money. On July 11, after being contacted by representatives of Adelson who denied certain allegations in the petition taken from other news sources, appellees removed the petition from the NJDC website. At the same time, appellees posted a press release, which, without repeating the allegations, stated that appellees stood by the petition's contents. Adelson demanded that appellees issue a retraction and apology. When they refused, he filed suit.

Behind the contested allegations lies a separate lawsuit in Nevada against Adelson and Las Vegas Sands Corporation (" LVSC" ). LVSC, of which Adelson is Chairman and CEO, owns and operates casinos throughout the world, including, through its Chinese subsidiary, in Macau.

Page 806

The Nevada suit was brought by a former executive of that subsidiary, Steven Jacobs, who was fired for cause in 2010. As part of the Nevada litigation, Jacobs filed a sworn declaration stating that, after he began efforts to eliminate loan sharks and prostitution from the Macau casino floor, " LVSC Senior Executives informed [him] that the prior prostitution strategy had been personally approved by Adelson." J.A. at 30. On June 28, 2012 the Associated Press (" AP" ) covered Jacobs's lawsuit, quoting this language, and reporting Adelson and LVSC's denial of any wrongdoing. See Ken Ritter, Ex-Sands Exec Alleges Prostitution in Macau Sites, Associated Press, June 28, 2012, available at http://bigstory.ap.org/article/ex-sands-exec-alleges-prostitution-macau-sites.

Following the AP coverage, appellees published their online petition. The petition urged readers to " Tell Romney to Reject Adelson's Dirty Money," and featured a graphic underneath this headline with Adelson's face on the left, Governor Romney's on the right, and a rhetorical question in all capital letters in the middle: " IF ONE OF YOUR BIGGEST DONORS WAS ACCUSED OF PUTTING 'FOREIGN MONEY' FROM CHINA IN OUR ELECTIONS & REPORTEDLY APPROVED OF PROSTITUTION, WOULD YOU TAKE HIS MONEY?" J.A. at 26.

Below the graphic was text elaborating on the basis for the petition. That text contained, inter alia, a reference to " reports [that] Adelson 'personally approved' of prostitution in his Macau casinos." Id. at 38. The quoted words " personally approved" were blue, underlined, and hyperlinked to the AP article.[1] By appellees' own admission, the hyperlinked article was their sole source of this information. They conducted no independent investigation.

At the time appellees posted the petition, Adelson and LVSC had filed no reply in the Nevada litigation. By the time a reply denying Adelson's alleged approval of any prostitution strategy was filed, appellees ...


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