Case 1:17-cv APM Document 7 Filed 10/13/17 Page 3 of 20 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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1 Case 1:17-cv APM Document 7 Filed 10/13/17 Page 3 of 20 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA LIBRE BY NEXUS, Plaintiff, v. Case No. 1:17-cv APM BUZZFEED, INC., et al., Defendants. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS SPECIAL MOTION TO DISMISS UNDER THE D.C. ANTI-SLAPP ACT BALLARD SPAHR LLP Of Counsel: Allison Lucas Nabiha Syed BuzzFeed, Inc. 111 E. 18th Street 13th Floor New York, NY Chad R. Bowman (D.C. Bar No ) Maxwell S. Mishkin (D.C. Bar No ) 1909 K Street, NW, 12th Floor Washington, DC Telephone: (202) Fax: (202) bowmanchad@ballardspahr.com mishkinm@ballardspahr.com Counsel for Defendants BuzzFeed, Inc. and Ben Smith Dated: October 13, 2017

2 Case 1:17-cv APM Document 7 Filed 10/13/17 Page 4 of 20 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii PRELIMINARY STATEMENT... 1 BACKGROUND AND PROCEDURAL HISTORY... 3 ARGUMENT... 4 I. D.C. S ANTI-SLAPP ACT APPLIES IN FEDERAL DIVERSITY CASES...4 II. LBN S CLAIM SHOULD BE DISMISSED UNDER THE D.C. ANTI- SLAPP ACT...7 A. LBN s Complaint Triggers The Anti-SLAPP Act s Protections The Report is protected under Section (1)(A)(ii) The Report is protected under Section (1)(B) B. LBN Cannot Show That Its Claim Is Likely To Succeed On The Merits CONCLUSION i

3 Case 1:17-cv APM Document 7 Filed 10/13/17 Page 5 of 20 TABLE OF AUTHORITIES Page(s) Cases 3M Co. v. Boulter, 842 F. Supp. 2d 85 (D.D.C. 2012)...4 *Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328 (D.C. Cir. 2015)... passim Ashcroft v. Iqbal, 556 U.S. 662 (2009)...11 Boley v. Atl. Monthly Grp., 950 F. Supp. 2d 249 (D.D.C. 2013)...4, 9, 11 Burke v. Air Serv Int l, Inc., 685 F.3d 1102 (D.C. Cir. 2012)...6, 7 Chandok v. Klessig, 632 F.3d 803 (2d Cir. 2011)...2 *Competitive Enter. Inst. v. Mann, 150 A.3d 1213 (D.C. 2016)... passim Dameron v. Wash. Magazine, Inc., 779 F.2d 736 (D.C. Cir. 1985)...11 Diwan v. EMP Glob. LLC, 841 F. Supp. 2d 246 (D.D.C. 2012)...4 *Easaw v. Newport, --- F. Supp. 3d ---, 2017 WL (D.D.C. May 12, 2017)...2, 6 Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)...2, 6, 7 Farah v. Esquire Magazine, Inc., 863 F. Supp. 2d 29 (D.D.C. 2012)...4, 9, 11 Forras v. Rauf, 39 F. Supp. 3d 45 (D.D.C. 2014)...4 Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816 (D.C. Cir. 1984)...5 ii

4 Case 1:17-cv APM Document 7 Filed 10/13/17 Page 6 of 20 Gardner v. Martino, 563 F.3d 981 (9th Cir. 2009)...2 Godin v. Schencks, 629 F.3d 79 (1st Cir. 2010)...2, 7 Hanna v. Plumer, 380 U.S. 460 (1965)...7 Henry v. Lake Charles Am. Press, LLC, 566 F.3d 164 (5th Cir. 2009)...2 Hilton v. Hallmark Cards, 599 F.3d 894 (9th Cir. 2010)...2 Intercon Sols., Inc. v. Basel Action Network, 791 F.3d 729 (7th Cir. 2015)...2 Lee v. Flintkote Co., 593 F.2d 1275 (D.C. Cir. 1979)...6 Liberty Synergistics Inc. v. Microflo LTD., 718 F.3d 138 (2d Cir. 2013)...2 Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991)...11 Mayfield v. NASCAR, 674 F.3d 369 (4th Cir. 2012)...11 Novak v. Capital Mgmt. & Dev. Corp., 452 F.3d 902 (D.C. Cir. 2006)...5 OAO Alfa Bank v. Ctr. for Pub. Integrity, 387 F. Supp. 2d 20 (D.D.C. 2005)...11 Price v. Stossel, 620 F.3d 992 (9th Cir. 2010)...2 Robertson v. Cartinhour, 867 F. Supp. 2d 37 (D.D.C. 2012)...11 Royalty Network, Inc. v. Harris, 756 F.3d 1351 (11th Cir. 2014)...2 Salve Regina College v. Russell, 499 U.S. 225 (1991)...6 iii

5 Case 1:17-cv APM Document 7 Filed 10/13/17 Page 7 of 20 Sherrod v. Breitbart, 720 F.3d 932 (D.C. Cir. 2013)...1, 4 Smith v. California, 361 U.S. 147 (1959)...1 U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir. 1999)...7 Walker v. Armco Steel Corp., 446 U.S. 740 (1980)...6 Wash. Post Co. v. Keogh, 365 F.2d 965 (D.C. Cir. 1966)...1 Weyrich v. New Republic, 235 F.3d 617 (D.C. Cir. 2001)...11 White v. Fraternal Order of Police, 909 F.2d 512 (D.C. Cir. 1990)...11 Statutes & Other Authorities D.C. Code , 9, 10 D.C. Code passim 58 D.C. Reg. 17 (Apr. 29, 2011)...1 iv

6 Case 1:17-cv APM Document 7 Filed 10/13/17 Page 8 of 20 PRELIMINARY STATEMENT The D.C. Circuit has long recognized that [t]he threat of being put to the defense of a lawsuit... may be as chilling to the exercise of First Amendment freedoms as fear of the outcome of the lawsuit itself. Wash. Post Co. v. Keogh, 365 F.2d 965, 968 (D.C. Cir. 1966). Moreover, the court has cautioned that [u]nless persons, including newspapers, desiring to exercise their First Amendment rights are assured freedom from the harassment of lawsuits, they will tend to become self-censors, and that such self-censorship affecting the whole public is hardly less virulent for being privately administered. Id. (quoting Smith v. California, 361 U.S. 147, 154 (1959)). In attempt to address precisely this concern, the District of Columbia, like many other jurisdictions, passed an Anti-SLAPP law, 1 see 58 D.C. Reg. 17 (Apr. 29, 2011), which secures the prompt dismissal of any claim arising out of an act in furtherance of the right of advocacy on issues of public interest, unless the plaintiff can show that the claim is likely to succeed on the merits, see D.C. Code (a)-(b). Four years after this D.C. Anti-SLAPP Act went into effect, the D.C. Circuit in the absence of guidance from the D.C. Court of Appeals on the meaning of the Act s protections predicted that the Act s likely to succeed on the merits standard would be construed to set a different bar for dismissing a claim governed by the Act than either Rule 12 or Rule 56 of the Federal Rules of Civil Procedure, and on that basis held that the protections of the D.C. Anti- SLAPP Act were not available to a defendant sued in federal court. Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328 (D.C. Cir. 2015). That decision marked a split from how all other 1 SLAPP stands for strategic lawsuits against public participation and refers to suits aimed to punish or prevent the expression of opposing points of view. Sherrod v. Breitbart, 720 F.3d 932, 934 (D.C. Cir. 2013) (citation omitted). 1

7 Case 1:17-cv APM Document 7 Filed 10/13/17 Page 9 of 20 federal appellate courts had by then addressed that question in considering state anti-slapp statutes around the country. 2 Less than two years later, responding directly to the D.C. Circuit s prediction in Abbas, the D.C. Court of Appeals pronounced that the Anti-SLAPP Act s likely to succeed standard does in fact simply mirror the standards imposed by Federal Rule 56. Competitive Enter. Inst. v. Mann, 150 A.3d 1213, 1238 n.32 (D.C. 2016) (internal marks and citation omitted). The Mann decision thereby clearly and unmistakably render[ed] Abbas inaccurate in its prediction of D.C. law, and so the more recent expression of the law from the D.C. Court of Appeals should be applied by federal courts sitting in diversity and applying D.C. law. Easaw v. Newport, --- F. Supp. 3d ---, 2017 WL , at *10 (D.D.C. May 12, 2017) (Howell, C.J.). And because the likely to succeed on the merits standard in the Anti-SLAPP Act can no longer be said to conflict with the federal rules, the Act s protections are available to defendants in federal court as well as state court. See Erie R.R. Co. v. Tompkins, 304 U.S. 64,78-80 (1938). Applying those protections here should lead to the prompt dismissal of this action. As discussed below and in the accompanying memorandum in support of BuzzFeed s motion to dismiss for failure to state a claim (the Rule 12(b)(6) Memo ), BuzzFeed published a news report, Declaration of Chad R. Bowman, Ex. A (the Report ), in July 2016 about NEXUS Programs, now known as Libre by Nexus ( LBN ). Included in the Report was a passage in 2 See Liberty Synergistics Inc. v. Microflo LTD., 718 F.3d 138, (2d Cir. 2013); Chandok v. Klessig, 632 F.3d 803, (2d Cir. 2011); Hilton v. Hallmark Cards, 599 F.3d 894, (9th Cir. 2010); Godin v. Schencks, 629 F.3d 79, 89 & n.16 (1st Cir. 2010); Price v. Stossel, 620 F.3d 992, (9th Cir. 2010); Gardner v. Martino, 563 F.3d 981, (9th Cir. 2009); Henry v. Lake Charles Am. Press, LLC, 566 F.3d 164, (5th Cir. 2009). But cf. Royalty Network, Inc. v. Harris, 756 F.3d 1351, (11th Cir. 2014) (finding Georgia anti-slapp law s verification requirement alone to conflict with the Federal Rules of Civil Procedure); Intercon Sols., Inc. v. Basel Action Network, 791 F.3d 729, (7th Cir. 2015) (holding that Washington State s anti-slapp law was inapplicable in federal court after the Washington Supreme Court found that law to conflict with the state constitution). 2

8 Case 1:17-cv APM Document 7 Filed 10/13/17 Page 10 of 20 which BuzzFeed wrote that LBN had already been investigated in 2013 by... ICE s Homeland Security Investigations (HSI) unit for allegedly targeting undocumented immigrants in custody and fraudulently charging them a fee for services, and that this investigation was eventually closed due to lack of evidence. Report at 5. That passage quoted nearly verbatim from and provided readers with a link to an official ICE record. One year later, in this action, Plaintiff LBN sued Defendants BuzzFeed, Inc. and its editor-in-chief Ben Smith (together, BuzzFeed ) for defamation, alleging that this statement was false. LBN s Complaint fails for all the reasons set out in the Rule 12(b)(6) Memo, which is incorporated fully herein. In particular, the Complaint is deficient because (a) the statement is protected by the fair report privilege, as it fairly and accurately summarized a government record and made the attribution to that record clear; (b) the challenged statement is at least substantially true; (c) the statement is not actionable because reporting that a company was the subject of an investigation that was closed for lack of evidence is not reasonably capable of a defamatory meaning; and (d) LBN has failed to plausibly allege that BuzzFeed published the statement with knowledge that it was false, or with serious doubts about its truth. In light of each of these four independent bases for dismissal, LBN cannot show that its claim is likely to succeed on the merits, and so this Court should apply the D.C. Anti-SLAPP Act, grant BuzzFeed s special motion to dismiss, and award BuzzFeed its fees and costs. BACKGROUND AND PROCEDURAL HISTORY For the relevant facts and procedural history of this matter, BuzzFeed respectfully directs the Court to its Rule 12(b)(6) Memo, which is incorporated fully herein by reference. 3

9 Case 1:17-cv APM Document 7 Filed 10/13/17 Page 11 of 20 ARGUMENT The D.C. Anti-SLAPP Act allows defendants to dispatch defamation claims that arise out of an act in furtherance of the right of advocacy on issues of public interest, unless the plaintiff can show that the claim is likely to succeed on the merits. D.C. Code (a)-(b). Because the Report qualifies for protection under the Anti-SLAPP Act in multiple ways, and because LBN cannot carry its burden of showing a likelihood of success, the Act requires that LBN s Complaint be dismissed with prejudice. I. D.C. S ANTI-SLAPP ACT APPLIES IN FEDERAL DIVERSITY CASES From the 2011 enactment of the D.C. Anti-SLAPP Act through 2015, the judges of this district found the Act to be generally applicable at least a half-dozen times in cases where jurisdiction arose out of diversity among the parties. See Forras v. Rauf, 39 F. Supp. 3d 45, (D.D.C. 2014); Abbas, 975 F. Supp. 2d at 9-11; Boley v. Atl. Monthly Grp., 950 F. Supp. 2d 249, 254 (D.D.C. 2013); Farah v. Esquire Magazine, Inc., 863 F. Supp. 2d 29, 36 n.10 (D.D.C. 2012), aff d, 736 F.3d 528 (D.C. Cir. 2013); Sherrod, 843 F. Supp. 2d 83, 85 (D.D.C. 2012); Diwan v. EMP Glob. LLC, 841 F. Supp. 2d 246, 247 n.1 (D.D.C. 2012). 3 But in April 2015, the D.C. Circuit issued its opinion in Abbas, affirming the district court s dismissal of plaintiff s defamation claim under Rule 12(b)(6), but reversing on the question of whether the Anti-SLAPP Act s protections were available for a defendant in federal court. 783 F.3d at Specifically, the Abbas court stated that the Act and Federal Rules of Civil Procedure 12 and 56 answer the same question about the circumstances under which a court must dismiss a case before trial, and that those Federal Rules answer that question differently because [t]hey do 3 By contrast, only once in that time was the Act held not to apply in federal court. See 3M Co. v. Boulter, 842 F. Supp. 2d 85, (D.D.C. 2012). 4

10 Case 1:17-cv APM Document 7 Filed 10/13/17 Page 12 of 20 not require a plaintiff to show a likelihood of success on the merits. Id. at (citation omitted). When faced with an unresolved question of state law in a federal diversity case, the D.C. Circuit has defined its duty to be answering the question in the manner that best predicts how the D.C. Court of Appeals would answer were it presented with the question. Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816, 824 (D.C. Cir. 1984); see also Novak v. Capital Mgmt. & Dev. Corp., 452 F.3d 902, 907 (D.C. Cir. 2006) ( Our duty, then, is to achieve the same outcome we believe would result if the District of Columbia Court of Appeals considered this case. ). As the D.C. Circuit noted, at the time of its decision in Abbas, the D.C. Court of Appeals ha[d] never interpreted the D.C. Anti-SLAPP Act s likelihood of success standard to simply mirror the standards imposed by Federal Rules 12 and F.3d at In Abbas, therefore, the D.C. Circuit made its best prediction and concluded that the Act s likelihood of success standard would be interpreted to be different from and more difficult for plaintiffs to meet than the standards imposed by Federal Rules 12 and 56. Id. To the Abbas court, the imposition of such an additional hurdle set at the height where it predicted the D.C. Court of Appeals would place it rendered the Anti-SLAPP Act inapplicable in federal court. The Abbas court s prediction of D.C. law has since been proven wrong. In Mann, the D.C. Court of Appeals expressly interpreted the Anti-SLAPP Act s likely to succeed on the merits standard to simply mirror the standards imposed by Federal Rule A.3d at 1238 n.32 (citation omitted). In light of Mann, therefore, a plaintiff in either state or federal court must clear only two bars to get to trial: the initial Rule 12 pleading standard on a motion to dismiss, and the higher Rule 56 standard on both a special motion to dismiss and a motion for summary judgment. So rather than creating the tension predicted by the Abbas court, the Anti- 5

11 Case 1:17-cv APM Document 7 Filed 10/13/17 Page 13 of 20 SLAPP Act and the federal rules exist side by side,... each controlling its own intended sphere of coverage without conflict. Burke v. Air Serv Int l, Inc., 685 F.3d 1102, 1108 (D.C. Cir. 2012) (quoting Walker v. Armco Steel Corp., 446 U.S. 740, 752 (1980)). The result of Mann is that Abbas no longer forecloses application of the D.C. Anti- SLAPP Act in diversity cases. As Chief Judge Howell has explained, when the D.C. COA has spoken clearly and unmistakably to the current state of D.C. law, its views must govern. Easaw, 2017 WL , at *9. That decision offered two main reasons for this approach. First, citing Salve Regina College v. Russell, 499 U.S. 225, (1991), the decision noted that in a diversity case, this Court must apply the current substantive law of the District of Columbia, which the D.C. Circuit is no more qualified than this Court to ascertain. Easaw, 2017 WL , at *9 (citations omitted). Second, the court recognized that applying an outdated and incorrect interpretation of D.C. law by the D.C. Circuit would subvert the dual aims of Erie: discouraging forum shopping and promoting uniformity within any given jurisdiction on matters of local substantive law. Id. (quoting Lee v. Flintkote Co., 593 F.2d 1275, 1279 n.14 (D.C. Cir. 1979)). Instead, [b]y following the most recent statement of D.C. law by the D.C. COA, this Court ensures that litigants in state and federal court are on equal footing. Id. Therefore, when a decision by the D.C. COA clearly and unmistakably renders inaccurate a prior decision by the D.C. Circuit interpreting D.C. law, this Court should apply the D.C. COA s more recent expression of the law. Id. at *10; see also, e.g., 17A Moore s Fed. Prac. - Civ ( When a higher federal court has ruled on a particular point of state law, a lower court must ordinarily follow that decision in the absence of an intervening, authoritative state decision. Some courts hold that a prior federal appellate decision is persuasive, while 6

12 Case 1:17-cv APM Document 7 Filed 10/13/17 Page 14 of 20 others consider a prior decision from the same circuit to be binding in the absence of an intervening and supervening state court decision. ). The Mann decision in this way represents an intervening and controlling interpretation of D.C. law to which this Court should defer. And given the resulting lack of conflict between the federal rule and state law, the Court properly applies the state law when sitting in diversity if it is outcome-determinative in the relevant sense, meaning if the failure to enforce state law would disserve the so-called twin aims of the Erie rule: discouragement of forum-shopping and avoidance of inequitable administration of the laws. Burke, 685 F.3d at 1108 (quoting Hanna v. Plumer, 380 U.S. 460, 468 (1965)) (internal marks and citation omitted). It is well recognized that forum-shopping and inequitable administration of the law would result from defendants inability to avail themselves of an anti-slapp statute only in federal court. See, e.g., Godin, 629 F.3d at 92; U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 973 (9th Cir. 1999). Simply put, equitable administration of the laws not mean giving a libel plaintiff the choice between a forum where it could face a special motion to dismiss under the Anti-SLAPP Act and the potential cost-shifting that comes with it or a forum where that option is off the table. The Court should hold that the D.C. Anti-SLAPP Act can apply in this case. II. LBN S CLAIM SHOULD BE DISMISSED UNDER THE D.C. ANTI-SLAPP ACT Because LBN s defamation claim arises out of the BuzzFeed Report, the D.C. Anti- SLAPP Act s protections are implicated in this lawsuit. And because LBN cannot show that its claim is likely to succeed on the merits, BuzzFeed s special motion to dismiss that claim should be granted, the Complaint should be dismissed with prejudice, and BuzzFeed should be awarded its reasonable attorneys fees and costs. 7

13 Case 1:17-cv APM Document 7 Filed 10/13/17 Page 15 of 20 A. LBN s Complaint Triggers The Anti-SLAPP Act s Protections The Anti-SLAPP Act provides that [a] party may file a special motion to dismiss any claim arising from an act in furtherance of the right of advocacy on issues of public interest within 45 days after service of the claim. D.C. Code (a). It further states that [i]f a party filing a special motion to dismiss under this section makes a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest, then the motion shall be granted unless the responding party demonstrates that the claim is likely to succeed on the merits, in which case the motion shall be denied. Id (b). As Mann clarified, this should be interpreted as the Federal Rule 56 summary judgment standard. 150 A.3d at 1238 n.32. Under the Act, [i]f the special motion to dismiss is granted, dismissal shall be with prejudice. D.C. Code (d). To trigger the Act s protections, BuzzFeed must make a prima facie showing that LBN s claim arises from an act in furtherance of the right of advocacy on issues of public interest. Id (b). The statute defines an act in furtherance of the right of advocacy on issues of public interest in several ways. For one, an act in furtherance of the right of advocacy on issues of public interest can include [a]ny written or oral statement made [i]n a place open to the public or a public forum in connection with an issue of public interest, where an [i]ssue of public interest means an issue related to health or safety; environmental, economic, or community well-being; the District government; a public figure; or a good, product, or service in the market place. Id (1)(A)(ii) & (3). For another, an act in furtherance of the right of advocacy on issues of public interest includes [a]ny other expression or expressive conduct that involves petitioning the government or communicating views to members of the public in connection with an issue of public interest. Id (1)(B). The Anti-SLAPP Act s protections are activated here under either of these tests. 8

14 Case 1:17-cv APM Document 7 Filed 10/13/17 Page 16 of The Report is protected under Section (1)(A)(ii) The Report first qualifies for protection under the Anti-SLAPP Act because it constitutes a written... statement made [i]n a place open to the public or a public forum in connection with an issue of public interest, where an [i]ssue of public interest includes any issue related to health or safety or economic, or community well-being. Id (1)(A)(ii) & (3). The Report was inarguably [i]n a place open to the public or a public forum because it was published online, where anyone with a working internet connection or access to one can view it. Abbas, 975 F. Supp. 2d at 11 (citing Boley, 950 F. Supp. 2d at 255, and Farah, 863 F. Supp. 2d at 38); Mann, 150 A.3d at 1227 (the Act applies because the lawsuit is based on articles that appeared on [defendants ] websites that concern the debate over the existence and causes of global warming ). The Report also addressed an issue related to health or safety or economic, or community well-being. As the Report explains, LBN has become a leading fixer for immigrant detainees trying to secure bail bonds in what is a big market. In fiscal year 2013 alone, about 45,000 immigration bonds were posted worth $243 million, according to [ICE]. Report at 2. Moreover, the very thrust of the Report is that the economic well-being of LBN customers and their families may be ill-served in the long term by the challenge of making monthly rental payments to LBN while at the same time saving up to pay off the full cost of their bond. And issues of safety are implicated as well: as U.S. Representative Norma Torres wrote in an October 2015 letter to ICE that was linked to and cited in the Report, Immigrants detained at ICE detention facilities represent a unique and vulnerable population, and it is crucial that ICE ensures they are not preyed upon by unscrupulous businesses. Id. at 5. Indeed, LBN could hardly be heard to argue that the Report does not address an issue of community well-being when LBN s own president, Michael Donovan, told BuzzFeed that he has been able to take 9

15 Case 1:17-cv APM Document 7 Filed 10/13/17 Page 17 of 20 [LBN s business] model and help people across the country in an effort to create as much justice as we can. Id. at 7. The Report thus satisfies the requirements for Anti-SLAPP Act protection under D.C. Code (1)(A)(ii). 2. The Report is protected under Section (1)(B) The Report also meets the requirements for Anti-SLAPP Act protection because it amounts to expressive conduct that involves... communicating views to members of the public in connection with an issue of public interest within the meaning of D.C. Code (1)(B). As the Court can see for itself, the BuzzFeed Report provides readers with many expressions of varying opinion about the risks, benefits, and societal implications of LBN s business practices from satisfied and unsatisfied customers, from immigrant rights advocates, from LBN s president, and even from a sitting member of Congress, Representative Torres. Report at 5. 4 The Report thus communicates views to members of the public in connection with an issue of public interest, and qualifies for protection under the Anti-SLAPP Act in this way as well. B. LBN Cannot Show That Its Claim Is Likely To Succeed On The Merits Because BuzzFeed has sufficiently shown that LBN s claim arises from an act in furtherance of the right of advocacy on issues of public interest, BuzzFeed s special motion to dismiss should be granted unless LBN demonstrates that the claim is likely to succeed on the merits. D.C. Code (b). And as established in BuzzFeed s Rule 12(b)(6) Memo, LBN cannot make that showing because it fails to state a claim for which relief can be granted, for multiple independent reasons. 4 Representative Torres subsequently posted a copy of the BuzzFeed Report to her own official website. See 10

16 Case 1:17-cv APM Document 7 Filed 10/13/17 Page 18 of 20 First, LBN s claim fails because the passage at issue is protected under the fair report privilege. The challenged statement is privileged because it (a) provides a fair and accurate summary of an official record, (b) was published for the purpose of informing readers about a matter of public concern, and (c) clearly attributes its sourcing to the official record. See Rule 12(b)(6) Memo at 8-12; see also, e.g., White v. Fraternal Order of Police, 909 F.2d 512, (D.C. Cir. 1990); Dameron v. Wash. Magazine, Inc., 779 F.2d 736, 739 (D.C. Cir. 1985). Second, LBN s claim fails because the only statement at issue in the BuzzFeed Report is substantially true. A challenged publication must be materially false that is, not substantially true to be actionable in defamation. See Rule 12(b)(6) Memo at 12-16; see also, e.g., Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517 (1991); Robertson v. Cartinhour, 867 F. Supp. 2d 37, 59 (D.D.C. 2012), aff d, 553 F. App x 1 (D.C. Cir. 2014). Third, LBN s claim fails because the challenged statement that LBN was investigated before that investigation was closed for lack of evidence is not reasonably capable of any defamatory meaning. See Rule 12(b)(6) Memo at 16-18; see also, e.g., Farah, 736 F.3d at 535; Weyrich v. New Republic, 235 F.3d 617, 627 (D.C. Cir. 2001). Fourth, LBN s claim fails because LBN, a public figure defamation plaintiff, does not plead sufficient facts to allege plausibly that BuzzFeed published the challenged statement with actual malice that is, with knowledge that the statement was false or with serious doubts about its truth. See Rule 12(b)(6) Memo at 18-21; see also, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Mayfield v. NASCAR, 674 F.3d 369, (4th Cir. 2012); Boley, 950 F. Supp. 2d at 263; OAO Alfa Bank v. Ctr. for Pub. Integrity, 387 F. Supp. 2d 20, (D.D.C. 2005). 11

17 Case 1:17-cv APM Document 7 Filed 10/13/17 Page 19 of 20 In the face of these deficiencies, LBN cannot carry its burden of demonstrating that it is likely to succeed on the merits of its defamation claim, as required by the D.C. Anti-SLAPP Act. LBN s Complaint accordingly should be dismissed with prejudice. See D.C. Code (b). CONCLUSION For the foregoing reasons, BuzzFeed respectfully requests that its special motion to dismiss be granted, that LBN s Complaint be dismissed expeditiously and with prejudice, and that BuzzFeed be awarded its reasonable attorneys fees and costs. Dated: October 13, 2017 Respectfully submitted, BALLARD SPAHR LLP Of Counsel: Allison Lucas Nabiha Syed BuzzFeed, Inc. 111 E. 18th Street 13th Floor New York, NY /s/ Chad R. Bowman Chad R. Bowman (D.C. Bar No ) Maxwell S. Mishkin (D.C. Bar No ) 1909 K Street, NW, 12th Floor Washington, DC Telephone: (202) Fax: (202) bowmanchad@ballardspahr.com mishkinm@ballardspahr.com Counsel for Defendants BuzzFeed, Inc. and Ben Smith 12