FRIDMAN et al v. BEAN LLC et al

Filing 20

MOTION to Dismiss the Amended Complaint for Failure to State a Claim by BEAN LLC, GLENN SIMPSON (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Addendum, # 5 Text of Proposed Order)(Cotton, Rachel)

Case 1:17-cv-02041-RJL Document 20 Filed 01/29/18 Page 1 of 3

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MIKHAIL FRIDMAN, PETR AVEN, and
GERMAN KHAN,
Plaintiffs,
Civil Case No. 1:17-cv-2041-RJL
v.
BEAN LLC a/k/a FUSION GPS, and GLENN
SIMPSON,
Defendants.
DEFENDANTS’ MOTION TO DISMISS THE AMENDED COMPLAINT
FOR FAILURE TO STATE A CLAIM
Defendants Fusion GPS and Glenn Simpson, by and through undersigned counsel, hereby
move this Court for an order dismissing Plaintiffs’ Amended Complaint with prejudice. A
Memorandum of Points and Authorities in Support of this Motion and a Proposed Order are filed
herewith.
As detailed in the attached Memorandum of Points and Authorities, the Amended
Complaint should be dismissed. With one possible exception, the statements about Plaintiffs in
CIR 112 are not defamatory. Further, Plaintiffs are among the most prominent Russian oligarchs
in Russian history and thus public figures who are required to plead “actual malice” in order to
state a defamation claim. They have not done so. Finally, Plaintiffs have failed to adequately
allege any actionable publication of CIR 112 by Defendants.
WHEREFORE, Defendants respectfully request that the Court dismiss Plaintiffs’
Amended Complaint with prejudice.

Case 1:17-cv-02041-RJL Document 20 Filed 01/29/18 Page 2 of 3

Dated: January 29, 2018

Respectfully submitted,
/s/ William W. Taylor, III
William W. Taylor, III (DC Bar No. 84194)
Steven M. Salky (DC Bar No. 360175)
Rachel F. Cotton (DC Bar No. 997132)
ZUCKERMAN SPAEDER LLP
1800 M Street, N.W., Suite 1000
Washington, D.C. 20036
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Defendants

2

Case 1:17-cv-02041-RJL Document 20 Filed 01/29/18 Page 3 of 3

CERTIFICATE OF SERVICE
I hereby certify that on this 29th day of January 2018, I electronically filed and served the
foregoing using the CM/ECF system.
/s/ Rachel F. Cotton
Rachel F. Cotton

Case 1:17-cv-02041-RJL Document 20-1 Filed 01/29/18 Page 1 of 48

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MIKHAIL FRIDMAN, PETR AVEN, and
GERMAN KHAN,
Plaintiffs,
Civil Case No. 1:17-cv-2041-RJL
v.
BEAN LLC a/k/a FUSION GPS, and GLENN
SIMPSON,
Defendants.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS’ MOTION TO DISMISS THE AMENDED COMPLAINT
FOR FAILURE TO STATE A CLAIM

Case 1:17-cv-02041-RJL Document 20-1 Filed 01/29/18 Page 2 of 48

TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iii
INTRODUCTION .......................................................................................................................... 1
PUBLIC CONTROVERSY CONCERNING THE RUSSIAN OLIGARCHY,
INCLUDING THE THREE OLIGARCH PLAINTIFFS IN THIS CASE .................................... 3
A.

The Russian Oligarchy........................................................................................................ 3

B.

Oligarchs Fridman, Aven, and Khan .................................................................................. 5
i. Plaintiffs’ Careers and Fortunes.................................................................................... 6
ii. Public Attention on Plaintiffs’ Relationship with the Russian Government ................ 9
iii. Persistent Allegations of Wrongdoing in the Media ................................................... 12

CIR 112 AND THE DOSSIER ..................................................................................................... 14
ARGUMENT ................................................................................................................................ 15
I.

STANDARD OF LAW ......................................................................................................... 15

II. STATEMENTS IN CIR 112 ABOUT THE OLIGARCH PLAINTIFFS, SUCH AS
HAVING A GOOD RELATIONSHIP WITH PRESIDENT PUTIN, ARE NOT
DEFAMATORY ................................................................................................................... 17
A. The Title of CIR 112 Is Not Defamatory .................................................................... 17
B. The First Paragraph of CIR 112 Is Not Defamatory ................................................... 18
C. With the Possible Exception of One Sentence, the Second Paragraph of
CIR 112 is Not Defamatory ........................................................................................ 21
D. The Third Paragraph of CIR 112 Is Not Defamatory ................................................. 23
III. PLAINTIFFS ARE PUBLIC FIGURES FOR THE PURPOSES OF THE PUBLIC
CONTROVERSIES ADDRESSED BY CIR 112: RUSSIAN OLIGARCHS’
POLITICAL-BUSINESS RELATIONSHIPS WITH THE RUSSIAN STATE
AND PRESIDENT PUTIN AND THE CONDUCT OF THOSE PARTIES WITH
RESPECT TO THOSE RELATIONSHIPS. ......................................................................... 25
A. Legal Standard ............................................................................................................ 25
B. Public Controversy...................................................................................................... 26

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C. Plaintiffs’ Prominence in the Controversy.................................................................. 27
D. Germaneness ............................................................................................................... 29
E. The Public Controversy at Issue in CIR 112 Is Not the U.S. Presidential
Election, But Even if CIR 112 Touches on That Controversy, Plaintiffs Are
Still Public Figures ...................................................................................................... 29
IV. PLAINTIFFS HAVE MADE NO FACTUAL ALLEGATIONS THAT SUPPORT A
PLAUSIBLE INFERENCE OF ACTUAL MALICE ........................................................... 30
V. PLAINTIFFS HAVE NOT PLEADED ANY ACTIONABLE PUBLICATION BY
DEFENDANTS TO A THIRD PARTY ............................................................................... 33
A. “Briefing” of Journalists ............................................................................................. 33
B. Delivery of the Dossier to Senator McCain ................................................................ 34
C. Publication of CIR 112 to Fusion’s Client .................................................................. 37
D. BuzzFeed’s Publication of CIR 112 ........................................................................... 36
VI. ANY PUBLICATION OF CIR 112 IS PRIVILEGED UNDER THE DOCTRINE OF
NEUTRAL REPORTAGE. ................................................................................................... 38
CONCLUSION ............................................................................................................................. 40

ii

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TABLE OF AUTHORITIES
CASES
Adelson v. Harris,
973 F. Supp. 2d 467 (S.D.N.Y. 2013) ...................................................................................... 20
*Ashcroft v. Iqbal,
556 U.S. 662 (2009) ............................................................................................................ 15, 33
Barry v. Time, Inc.,
584 F. Supp. 1110 (N.D. Cal. 1984) ......................................................................................... 39
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) .................................................................................................................. 15
*Boley v. Atl. Monthly Grp.,
950 F. Supp. 2d 249 (D.D.C. 2013) .............................................................................. 20, 25, 29
Buckley v. Littell,
539 F.2d 882 (2d Cir. 1976) ..................................................................................................... 20
Clyburn v. News World Commc’ns, Inc.,
903 F.2d 29 (D.C. Cir. 2003) .................................................................................................... 32
Coles v. Wash. Free Weekly, Inc.,
881 F. Supp. 26 (D.D.C. 1995) ........................................................................................... 16, 18
*Deripaska v. AP,
Civ. Action No. 17-00913 (ESH), 2017 WL 4685297 (D.D.C. Oct. 17, 2017) ................ passim
Edwards v. Nat’l Audubon Soc’y,
556 F.2d 113 (2d Cir. 1977) ..................................................................................................... 39
Effie Film, LLC v. Pomerance,
909 F. Supp. 2d 273 (S.D.N.Y. 2012) ...................................................................................... 16
*Farah v. Esquire Mag.,
736 F.3d 528 (D.C. Cir. 2013) ...................................................................................... 16, 17, 24
Fashion Boutique of Short Hills, Inc. v. Fendi USA, Inc.,
314 F.3d 48 (2d Cir. 2002) ....................................................................................................... 37
Harte-Hanks Commc’ns v. Connaughton,
491 U.S. 657 (1989) .................................................................................................................. 32

iii

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Hogan v. Winder,
762 F.3d 1096 (10th Cir. 2014) ................................................................................................ 18
Hourani v. Psybersolutions LLC,
164 F. Supp. 3d 128 (D.D.C. 2016) .......................................................................................... 25
In re United Press Int’l,
106 B.R. 323 (D.D.C. 1989) ..................................................................................................... 39
*Jankovic v. Int’l Crisis Grp.,
494 F.3d 1080 (D.C. Cir. 2007) .................................................................................... 16, 21, 33
*Jankovic v. Int'l Crisis Grp.,
822 F.3d 576 (D.C. Cir. 2016) ................................................................................ 25, 29, 31, 32
Kowal v. MCI Commc’ns Corp.,
16 F.3d 1271 (D.C. Cir. 1994) .................................................................................................. 15
Lohrenz v. Donnelly,
350 F.3d 1272 (D.C. Cir. 2003) ................................................................................................ 31
McCabe v. Rattiner,
814 F.2d 839 (1st Cir. 1987) ..................................................................................................... 20
McFarlane v. Sheridan Square Press, Inc.,
91 F.3d 1501 (D.C. Cir. 1996) .................................................................................................. 32
Milkovich v. Lorain Journal Co.,
497 U.S. 1 (1990) ................................................................................................................ 17, 23
New York Times Co. v. Sullivan,
376 U.S. 254 (1995) .................................................................................................................. 31
Norex Petroleum Ltd. v. Access Indus.,
No. 02-cv-1499 (S.D.N.Y. Feb. 26, 2002)................................................................................ 14
Novecon v. Bulgarian-Am. Enter. Fund,
977 F. Supp. 45 (D.D.C. 1997) ................................................................................................. 28
Nurriddin v. Bolden,
818 F.3d 751 (D.C. Cir. 2016) .................................................................................................. 15
*OAO Alfa Bank v. Center for Public Integrity,
387 F. Supp. 2d 20 (D.D.C. 2005) ..................................................................................... passim

iv

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Old Dominion Branch No. 496, Nat’l Ass’n of Letter Carriers v. Austin,
418 U.S. 264 (1974) .................................................................................................................. 20
*Ollman v. Evans,
750 F.2d 970 (D.C. Cir. 1984) ............................................................................................ 20, 23
Parisi v. Sinclair,
845 F. Supp. 2d 215 (D.D.C. 2012) .......................................................................................... 32
Payne v. Clark,
25 A.3d 918 (D.C. 2011) .......................................................................................................... 36
Phantom Touring, Inc. v. Affiliated Publ’ns,
953 F.2d 724 (1st Cir. 1992) ..................................................................................................... 20
Premier Growth Fund v. Alliance Capital Mgmt.,
435 F.3d 396 (3d Cir. 2006) ..................................................................................................... 16
Provisional Gov’t of New Afrika v. ABC, Inc.,
609 F. Supp. 104 (D.D.C. 1985) ............................................................................................... 21
Q Int'l Courier, Inc. v. Seagraves, No. 95-1554 (RMU),
1999 WL 1027034 (D.D.C. Feb. 26, 1999) .............................................................................. 18
Rubenstein v. Manhattan & Bronx Surface Operating Auth.,
1997 WL 833456 (E.D.N.Y. Oct. 8, 1997) ............................................................................... 37
Smith v. District of Columbia,
399 A.2d 213 (D.C. 1979) .................................................................................................. 35, 36
Sunshine Sportswear & Elecs., Inc. v. WSOC Television, Inc.,
738 F. Supp. 1499 (D.S.C. 1989).............................................................................................. 39
Tavoulareas v. Piro,
817 F.2d 762 (D.C. Cir. 1987) ...................................................................................... 25, 28, 29
Von Saher v. Norton Simon Museum of Art at Pasadena,
592 F.3d 954 (9th Cir. 2010) .................................................................................................... 16
Wait v. Beck’s N. Am., Inc.,
241 F. Supp. 2d 172 (N.D.N.Y. 2003) ...................................................................................... 20
*Waldbaum v. Fairchild Publ’ns,
627 F.2d 1287 (D.C. Cir. 1980) .......................................................................................... 25, 29
Wash. Post Co. v. Keogh,
365 F.2d 965 (D.C. Cir. 1966) .................................................................................................. 16

v

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Webster v. Sun Co.,
731 F.2d 1 (D.C. Cir. 1984) ...................................................................................................... 34
*Weyrich v. New Republic, Inc.,
235 F.3d 617 (D.C. Cir. 2001) ............................................................................................ 16, 20
Zimmerman v. Al Jazeera Am., LLC,
246 F. Supp. 3d 257 (D.D.C. 2017) .......................................................................................... 32
RULES
Fed. R. Civ. P. 12(b)(6)................................................................................................................. 15
OTHER AUTHORITIES
2 Robert D. Sack, Sack on Defamation (5th ed. 2017) ........................................................... 17, 36
Restatement (Second) of Torts § 596 (1977) ................................................................................ 36
Restatement (Second) of Torts § 598 (1977) ................................................................................ 35

vi

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INTRODUCTION
Plaintiffs Mikhail Fridman, Petr Aven, and German Khan are three of Russia’s wealthiest
and most internationally prominent oligarchs. Their business and political conduct has attracted
substantial international press and public scrutiny for decades. Defendant Glenn Simpson is a
former Wall Street Journal reporter. He is a principal in Defendant Fusion GPS, which is a
research and strategic intelligence firm that often investigates matters of public interest.
Plaintiffs are suing Defendants for money damages based on an investigative report titled
Company Intelligence Report 2016/112 (“CIR 112”) (Ex. 1) that Defendants commissioned from
a well-regarded former British intelligence officer, Christopher Steele.

With one possible

exception regarding corruption, no statement in CIR 112 is defamatory.

Consequently,

Plaintiff’s Amended Complaint rephrases and distorts the language of CIR 112 using words not
in CIR 112, and then unsurprisingly finds defamatory meaning in the rephrased content. For
example, Plaintiffs take the statement in CIR 112 that they “are on very good terms” with
Russian President Vladimir Putin and that “[s]ignificant favors continued to be done in both
directions” – and reinvent the statement as one alleging that Plaintiffs “maintain a highly
inappropriate, and even criminal, relationship with Putin,” and then complain that the reinvented
version is defamatory. Plaintiffs’ need to revise the text of CIR 112 is telling and fatal. As we
show below in Section II, with one possible exception, Plaintiff’s claims can be dismissed on the
simple ground that CIR 112’s actual text is not defamatory.
Even if CIR 112’s text could be defamatory, Plaintiffs are public figures many times over
for all purposes relevant here. The text of CIR 112 concerns the Russian government and
President Putin’s intertwined relationships with Russian oligarchs and misconduct by both sides
in business and politics. Those relationships are the subject of a public controversy that has

Case 1:17-cv-02041-RJL Document 20-1 Filed 01/29/18 Page 9 of 48

generated immense public interest and scrutiny over more than two decades, as explained in
Section III.

The Russian government’s relations with its oligarchs, and with Plaintiffs in

particular, have achieved such daily currency that the Wikipedia entry for the general term
“Russian Oligarchs” contains the following language about Plaintiffs:
The most famous oligarchs of the Putin era include . . . German Khan . . . Mikhail
Fridman . . . Pyotr Aven. . . Between 2000 and 2004, Putin apparently engaged in
a power-struggle with some oligarchs, reaching a “grand bargain” with them. This
bargain allowed the oligarchs to maintain their powers, in exchange for their
explicit support of – and alignment with – Putin’s government.
https://en.wikipedia.org/wiki/Russian_oligarch (last visited January 29, 2018) (emphasis
added).
To plead a defamation claim, public figures like Plaintiffs must plausibly allege facts
establishing “actual malice,” a state of mind required by the First Amendment. Plaintiffs fail to
do so. Thus, as we explain below in Section IV, their claims must be dismissed.
Plaintiffs have tried bringing a defamation claim without alleging malice before and
failed. Two of the Plaintiffs here, Fridman and Aven (along with Alfa, the business of all three
Plaintiffs here) sued the Center for Public Integrity and others in this district for an article
describing Fridman and Aven’s criminal connections to corruption, organized crime and drug
trafficking in Russia. Judge Bates dismissed the case, holding that Plaintiffs were public figures
who had not established actual malice. He found that Fridman and Aven were oligarchs who had
achieved “an unforeseen level of prominence and influence in the economic and political affairs
of their nation” and had long been “dogged by allegations of corruption and illegal conduct.”
OAO Alfa Bank v. Center for Public Integrity, 387 F. Supp. 2d 20, 27-28 (D.D.C. 2005). Judge
Huvelle recently dismissed a comparable defamation case brought by a different Russian
oligarch on similar grounds. Deripaska v. AP, Civ. Action No. 17-00913 (ESH), 2017 WL

2

Case 1:17-cv-02041-RJL Document 20-1 Filed 01/29/18 Page 10 of 48

4685297, at *4 (D.D.C. Oct. 17, 2017) (Huvelle, J.) (dismissing defamation claim because “a
public controversy exists relating to Russian oligarchs acting on behalf of the Russian
government” and plaintiff had failed to allege malice). This Court should dismiss Plaintiffs’
claims here for similar reasons even if CIR 112 could be said to contain defamatory text, as well
as for others explained below.
PUBLIC CONTROVERSY CONCERNING THE RUSSIAN OLIGARCHY, INCLUDING
THE THREE OLIGARCH PLAINTIFFS IN THIS CASE*
A. The Russian Oligarchy
During the 1990s, in the aftermath of the dissolution of the Soviet Union, a small group
of well-connected entrepreneurs became staggeringly rich by taking advantage of the corruption
and collusion that plagued the Russian economy. See OAO Alfa Bank, 387 F. Supp. 2d at 23.
Using their close connections to the Russian government, these Russian oligarchs amassed
power and wealth by exploiting the privatization of state assets and entering into shady deals
with government officials. See id. Since the rise of the oligarchy in Russia, the relationship
between the oligarchs and the Russian government has been the subject of “intense” public
discourse, scholarship, and scrutiny in the U.S. and abroad. Id. at 24 (highlighting acute focus on
the Russian oligarch-state relationship “in the White House, the halls of Congress, think tanks,
and in the press” (footnotes omitted)). Although that relationship has evolved over the past two
decades, with periodic power struggles between the oligarchs and the Kremlin and certain
oligarchs falling in and out of favor, the domestic and international attention trained on the
oligarchs and their political and economic entanglements with the Russian government has

3

Case 1:17-cv-02041-RJL Document 20-1 Filed 01/29/18 Page 11 of 48

remained persistent and robust.1 “[T]hese relationships are fixed in the public mind and widely
reported by the Russian news media,”2 as well as the U.S. news media.

* This Motion cites to publicly available news articles regarding the public controversy concerning Russian
oligarchs and Plaintiffs. The nature of the public record – the fact that it exists – is properly considered in
determining whether a plaintiff is a public figure required to allege malice in order to avoid a Rule 12(b)(6)
dismissal of his or her complaint. See, e.g., Deripaska v. AP, 2017 WL 4685297, at *3. For the Court’s
convenience, certain articles which may require a subscription to access on the Internet are appended to this Motion.
1

For only a small sampling of more recent press coverage on the subject, see Anders Aslund, Russia’s oligarchsin-waiting, JAPAN TIMES (July 4, 2017), https://www.japantimes.co.jp/opinion/2017/07/04/commentary/worldcommentary/russias-oligarchs-waiting/#.WhCvCe3ytPY; Leonid Bershidsky, Not All Russian Billionaires Are Putin
Cronies, BLOOMBERG (Mar. 5, 2015), https://www.bloomberg.com/view/articles/2015-03-05/not-all-russianbillionaires-are-putin-cronies (discussing Fridman’s attempts to make investments beyond the reach of the Russian
government); Megan Davies & Melissa Akin, Russian risks bear down on oligarch Fridman, REUTERS, June 6,
2012,
https://www.reuters.com/article/us-russia-tnkbp-fridman/russian-risks-bear-down-on-oligarch-fridmanidUSBRE8550S420120606; Pamela Engel, How Vladimir Putin became one of the most feared leaders in the world,
BUSINESS INSIDER (Feb. 14, 2017), http://www.businessinsider.com/how-vladimir-putin-rose-to-power-2017-2
(describing Putin’s collaboration with oligarchs during his rise to power); Masha Gessen, The Myth of the Russian
Oligarchs, N.Y. TIMES (Dec. 11, 2014), https://www.nytimes.com/2014/12/11/opinion/masha-gessen-the-myth-ofthe-russian-oligarchs.html?_r=0; Jonathan Kandell, Alfa’s Mikhail Fridman Skirts Russian Sanctions to Invest
Abroad,
INSTITUTIONAL
INVESTOR,
May
4,
2015,
https://www.institutionalinvestor.com/article/b14z9vxcqbvzjy/alfas-mikhail-fridman-skirts-russian-sanctions-toinvest-abroad (discussing Fridman’s interest in staying in Putin’s good graces); Andrew E. Kramer & David M.
Herszenhorn, Midas Touch in St. Petersburg: Friends of Putin Grow Brightly, N.Y. TIMES, Mar. 1, 2012,
http://www.nytimes.com/2012/03/02/world/europe/ties-to-vladimir-putin-generate-fabulous-wealth-for-a-selectfew-in-russia.html; Andrew E. Kramer, The Last Days of the Oligarchs?, N.Y. TIMES, Mar. 7, 2009,
http://www.nytimes.com/2009/03/08/business/08shift.html (discussing the oligarchs’ debt crisis and reporting that
Fridman secured a “$2 billion Kremlin bailout to repay Deutche Bank”); Andrei Kolesnikov, Navalny Has Alleged
the Russian Prime Minister is Corrupt.
Now What?, MOSCOW TIMES,
Nov. 6, 2017,
https://themoscowtimes.com/articles/navalny-has-exposed-the-russian-prime-ministers-corruption-now-what-57336
(“At the core of the Russian state system is an unspoken agreement: the oligarchy supplies the needs and wants of
the ruling authorities who, in turn, protect the oligarchy from interference.”); Steve Levine, The Last Free Oligarch,
FOREIGN POLICY (July 25, 2012), http://foreignpolicy.com/2012/07/25/the-last-free-oligarch-2/ (discussing Putin’s
efforts to push oligarchs out of the oil business); Stanislav Markus, The Atlas That has Not Shrugged: Why Russia’s
Oligarchs are an Unlikely Force for Change, DAEDALUS, J. AM. ACAD. ARTS & SCI., Spring 2017,
http://www.mitpressjournals.org/doi/pdf/10.1162/DAED_a_00438; Charles P. Pierce, This is How the Russian
Kleptocracy Operates, ESQUIRE (July 27, 2017), http://www.esquire.com/news-politics/politics/news/a56666/russiaputin-oligarchs/ (describing Senate testimony regarding Putin’s attempts to benefit personally from oligarchs’
business dealings in exchange for not prosecuting them); Andrew S. Weiss, Russia’s Oligarchy, Alive and Well,
N.Y. TIMES, Dec. 30, 2013, http://www.nytimes.com/2013/12/31/opinion/russias-oligarchy-alive-and-well.html
(reporting that “the supposedly all-powerful Mr. Putin actually devotes much of his time to refereeing bitter
disputes” among oligarchs); Joshua Yaffa, Putin’s Shadow Cabinet and the Bridge to Crimea, THE NEW YORKER,
May 29, 2017, https://www.newyorker.com/magazine/2017/05/29/putins-shadow-cabinet-and-the-bridge-to-crimea
(“The oligarchs of the Putin era . . . are themselves assets of the state, administering business fiefdoms that also
happen to pay handsomely. Many have a long-standing relationship with the President, and a particular sphere of
responsibility.”); Shamil Yenikeyeff, BP, Russian Billionaires, and the Kremlin: a Power Triangle that never was,
THE OXFORD INSTITUTE FOR ENERGY STUDIES, Nov. 2011, https://www.oxfordenergy.org/wpcms/wpcontent/uploads/2011/11/BP-Russian-billionaires-and-the-Kremlin.pdf (“A super-presidential system of government
has been [a] key characteristic of th[e] [Russian] political system, in which the survival and success of political and
economic elites is based on privileged personal contacts with the chief executive.”); see also Jonas E. Alexis,
Vladimir Putin: Killing oligarchic schemes economically saved Russia, VETERANS TODAY, July 1, 2017,
https://www.veteranstoday.com/2017/07/01/vladimir-putin-killing-oligarchic-schemes-economically-saved-russia/;

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Corruption and other business and political misconduct in both the business and political
spheres are constant themes in the immense public record on the Russian oligarch-state
relationship. From the inception of the oligarchy to the present, the press has examined and
reported on the mostly symbiotic relationship through which the oligarchs and the Russian state
serve each other’s interests. For instance, oligarchs acquire and maintain gargantuan business
assets through legally dubious means with scant government interference, and in return,
government officials receive off-the-books contributions to serve both political and
personal/business ends.3 The pervasive public perception that many oligarchs have benefitted
from ill-gotten gains is reflected in “an expression that is popular among Russian businessmen:
‘Never ask about the first million.’”4
B. Oligarchs Fridman, Aven, and Khan
Mikhail Fridman, Petr Aven, and German Khan are three of the most prominent oligarchs
in Russian history. As a summary of their prominence, Wikipedia’s entry for “Russian oligarch”
Greg Fish, How Russia Became Ruled by Corruption and Vladimir Putin, Rantt.com, May 30, 2017,
https://rantt.com/how-russia-became-ruled-by-corruption-and-vladimir-putin-927bdf7af6af; Ben Mezrich, It isn’t the
oligarchs
who
rule
Russia
anymore,
BOSTON
GLOBE,
June
10,
2015,
https://www.bostonglobe.com/opinion/2015/06/10/isn-oligarchs-who-rule-russiaanymore/hA9sGsk0TzlniQ0bmhECDN/story.html; Stanislav Markus, Oligarchs and Corruption in Putin’s Russia:
Of Sand Castles and Geopolitical Volunteering, Volunteering, GEO. J. INT’L AFF. (Summer/Fall 2017); Stuart Reid,
The Russian Triad has infiltrated American Society, THE SALT LAKE TRIBUNE, Aug. 27, 2017,
http://www.sltrib.com/opinion/commentary/2017/08/27/stuart-reid-the-russian-triad-has-infiltrated-americansociety/; Irina Reznik, A Fallen Russian Oligarch Sends Warning to Rest of Putin Insiders, BLOOMBERG, Jan. 12,
2016,
https://www.bloomberg.com/news/articles/2016-01-13/a-fallen-russia-oligarch-sends-warning-to-rest-ofputin-insiders.
2

Kramer & Herszenhorn, supra note 1.

3

See, e.g., Kolesnikov, supra note 1 (“At the core of the Russian state system is an unspoken agreement: the
oligarchy supplies the needs and wants of the ruling authorities who, in turn, protect the oligarchy from
interference.”); Yaffa, supra note 1 (“[M]any oligarchs finance the ‘black ledger,’ which . . . is ‘money that does not
go through the budget but is needed by the state. . . . Funds leave the state budget as procurement orders [to
companies owned by the oligarchs], and come back as off-the-books cash, to be spent however the Kremlin sees
fit.”); Kramer & Herszenhorn, supra note 1 (“Critics say these relationships are evidence of deeply entrenched
corruption, which they view as essentially government-sanctioned theft invariably connected to Russia’s abundant
natural resources: gas, oil, minerals.”).
4

Connie Bruck, The Billionaire’s Playlist: How an oligarch got into the American music business, THE NEW
YORKER, Jan. 20, 2014, https://www.newyorker.com/magazine/2014/01/20/the-billionaires-playlist.

5

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names “the most famous oligarchs of the Putin era” as including all three Plaintiffs.5 With their
incredible wealth and political power, each has had a pronounced influence on the economic and
political affairs of Russia. For more than two decades, each has been the subject of searching
domestic and international attention.
Searching Plaintiffs’ names on any Internet search engine shows that for decades they
have been squarely in the public eye and the eye of public controversy, shying away from
neither.

6

Any search returns an avalanche of articles about their business endeavors, their

wealth, their political and economic power, their close relationship with the Kremlin, and their
misconduct. As of October 2003, a “search of an online news database for English language
articles revealed more than 1,100 English language articles since 1990 that mention the name
Mikhail Fridman, and more than 1,400 articles that include the name Petr Aven.” OAO Alfa
Bank, 387 F. Supp. 2d at 28. A similar search on Lexis today shows that number has climbed
higher—now, more than 10,000 English language articles mention Fridman, more than 1,700
articles include Aven’s name, and more than 5,000 articles mention Khan.
i. Plaintiffs’ Careers and Fortunes
Fridman, Aven, and Khan’s public prominence owes to their meteoric business success
and their entanglements with the Russian state. Their business success and political relationships

5

Wikipedia, Russian Oligarch, https://en.wikipedia.org/wiki/Russian_oligarch (as of Jan. 28, 2018).

6

Searches will also reveal a number of lawsuits involving Alfa entities. The New Yorker quoted a Russian
analyst who knows Fridman as saying that Fridman “has the reputation that he loves suing companies. For him, it’s
a pleasure, not a cost.” Bruck, supra note 4.

6

Case 1:17-cv-02041-RJL Document 20-1 Filed 01/29/18 Page 14 of 48

have made them among the richest men in Russia, each worth billions of dollars.7,8,9 Just last
month, Forbes named Fridman Russia’s top businessman in 2017.10
Plaintiffs’ fortunes were made in large part as shareholders in the prominent Alfa Group,
one of the biggest privately owned financial-industrial consortiums in Russia, with more than
240,000 employees and a number of financial services companies (including one of Russia’s
largest private banks), an investment business, and interests in retail, water utilities and mineral
water production.

11

In its infancy, the Alfa Group “won the first auction for a state-owned

company” during Russia’s period of rapid privatization. OAO Alfa Bank, 387 F. Supp. 2d at 25.
Fridman and Khan founded and remain the “main beneficial owners” of the Alfa Group. 12 Petr
Aven was not an original founder of the Alfa Group, instead beginning his career as “one of the
handful of elite academics who [Boris] Yeltsin chose to steer the country on a course to
privatization. Yeltsin appointed Aven to be his first Minister for Foreign Economic Relations.”
OAO Alfa Bank, 387 F. Supp. 2d at 25. In that role, Aven “helped shape a radical and painful
policy shake-up in the turbulent Russia of the early 1990s.”13 He then left and joined Fridman
and Khan in building the Alfa Group. Plaintiffs have each held a number of leadership roles
with the Alfa Group and its companies. Fridman has been the long-time Chairman of Alfa
Group, Aven served as the President of Alfa Bank between 1994 to 2011, and Khan was the

7

Profile/Mikhail Fridman, FORBES.COM, https://www.forbes.com/profile/mikhail-fridman/.

8

Profile/Petr Aven, FORBES.COM, https://www.forbes.com/profile/pyotr-aven/.

9

Profile/German Khan, FORBES.COM, https://www.forbes.com/profile/german-khan/.

10

Forbes named Mikhail Fridman Russia’s top businessman in 2017, Prime Business News Agency, Dec. 21,
2017, http://www.1prime.biz/news/0/%7B2577C6C7-481D-467D-B4E7-6AA370B1050F%7D.uif?layout=print.
11
ALFA GROUP CONSORTIUM, http://www.alfagroup.org/.
12

About Us, ALFA GROUP CONSORTIUM, http://www.alfagroup.org/about-us/.

13

Andrew Jack, Petr Aven: the Russian oligarch with an eye for art, not yachts, FINANCIAL TIMES, July 12, 2017,
https://www.ft.com/content/f328a740-6233-11e7-8814-0ac7eb84e5f1.

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Case 1:17-cv-02041-RJL Document 20-1 Filed 01/29/18 Page 15 of 48

Executive Director of TNK-BP between 2003 and 2013. All three remain on the Alfa Group
Supervisory Board.14
Plaintiffs’ ventures in the oil and gas industry illustrate the entanglement of their wideranging business interests with those of the Russian state. For example, in 1997, Alfa purchased
Tyumen Oil (TNK), a struggling state-owned oil producer at the time, “at a fraction of the
company’s value, allegedly relying on [Alfa Group]’s allies at the highest levels of the Russian
government.”

OAO Alfa Bank, 387 F. Supp. 2d at 25.15

In 2003, in a high-profile and

controversial deal that proceeded only with President Putin’s blessing, the Alfa Group sold half
of TNK to British Petroleum (BP) in what was then the biggest foreign investment in Russia.16
TNK-BP became Russia’s third largest oil company, and Khan was named its Executive
Director. Ten years later, in 2013, Alfa Group sold its 50% stake in TNK-BP to a Russian stateowned company, Rosneft, for $28 billion, which was described by Reuters as “one of the biggest
energy takeovers in history”17 and which Forbes deemed “another move by Vladimir Putin to
centralize power.”18 The deal was finalized in an “all-night round-table” with Putin at his
official residence.19 The Putin-orchestrated deal made billions for Plaintiffs: Fridman made $5.1
billion,20 Khan earned approximately $3.3 billion,21 and Aven made almost $2 billion.22
14

About Us, Supervisory Board, ALFA GROUP CONSORTIUM, http://www.alfagroup.org/about-us/supervisoryboard/.
15

About Us, History, ALFA GROUP CONSORTIUM, http://www.alfagroup.org/about-us/history/?print=Y.

16

German Khan the oligarch behind TNK, LUXATIC, https://luxatic.com/german-khan-the-oligarch-behind-tnk/.

17

Andrew Callus, Insight: UK court reveals fear and mistrust at TNK-BP, REUTERS, Dec. 4, 2012,
https://ca.reuters.com/article/businessNews/idCABRE8B30XS20121204.
18

Nathan Vardi, The Four Horsemen of Russia’s Economic Apocalypse, FORBES, Feb. 9, 2015,
https://www.forbes.com/sites/nathanvardi/2015/01/21/the-four-horsemen-of-russias-economicapocalypse/#47b9ea301542.
19

Vladimir Soldatkin & Andrew Callus, Rosneft pays out in historic TNK-BP deal completion, REUTERS, Mar. 21,
2013,
https://www.reuters.com/article/us-rosneft-tnkbp-deal/rosneft-pays-out-in-historic-tnk-bp-deal-completionidUSBRE92K0IZ20130321.
20

Profile/Mikhail Fridman, FORBES.COM, https://www.forbes.com/profile/mikhail-fridman/.

8

Case 1:17-cv-02041-RJL Document 20-1 Filed 01/29/18 Page 16 of 48

Although there reportedly was an understanding that the oligarchs would reinvest the proceeds in
Russia, they have not done so—a fact that has generated media controversy23 and was touched
on in CIR 112. See Ex. 1 ¶ 3 (noting Alfa’s “failure to reinvest the proceeds of its TNK oil
company sale into the Russian economy”).
ii. Public Attention on Plaintiffs’ Relationship with the Russian
Government
Plaintiffs’ relationship with the Kremlin is the subject of judicial recognition and
significant media scrutiny.24 As Judge Bates recognized, Fridman and Aven “have maintained a

21

Praveen Duddu, The richest oil and gas billionaires, OFFSHORE TECHNOLOGY, Aug. 25, 2014,
http://www.offshore-technology.com/features/featurethe-richest-oil-and-gas-billionaires-4353593/.
22

Profile/Pyotr Aven, FORBES.COM, https://www.forbes.com/profile/pyotr-aven/.

23

See, e.g., How Russia’s 20 biggest billionaires hide their fortunes from the government, BLOOMBERG NEWS
(May 1, 2013, 10:26 AM), http://business.financialpost.com/personal-finance/managing-wealth/how-russias-20biggest-billionaires-hide-their-fortunes-from-the-government; Ben Aris, PROFILE: Mikhail Fridman, chairman of
Alfa Group, BNE INTELLINEWS, May 10, 2017, http://www.intellinews.com/profile-mikhail-fridman-chairman-ofalfa-group-121087/; Bershidsky, supra note 1 (quoting from Putin press conference stating his wish that Fridman
and his partners invest proceeds from the TNK-BP deal in the Russian economy).
24

For a sampling of more recent press about Plaintiffs and their relationship with the Russian government, see
John Aglionby, Profile: Mikhail Fridman – from rugs to riches, FINANCIAL TIMES, Mar. 2, 2015,
https://www.ft.com/content/c5aafbe6-c0bf-11e4-876d-00144feab7de#axzz3hqmiAWh6; Howard Amos, Russian
Tycoon Fridman Should Make U.K. Feel Nervous, MOSCOW TIMES, Mar. 10, 2015,
https://themoscowtimes.com/articles/russian-tycoon-fridman-should-make-uk-feel-nervous-44604
(“Fridman’s
access to top Russian officials is undisputed . . . Fridman's ties extend to the heart of the Kremlin.”); Bershidsky,
supra note 1 (arguing that Fridman is not a Putin crony); Guy Chazan, Lunch with the FT: Mikhail Fridman,
FINANCIAL TIMES, Apr. 1, 2016, https://www.ft.com/content/9527e2be-f5b5-11e5-96db-fc683b5e52db (Fridman
stating that he hired Aven as a “channel for communication with the government”); Guy Chazan & John Thornhill,
Mikhail Fridman: The Alpha oligarch, FINANCIAL TIMES, Mar. 5, 2015, https://www.ft.com/content/b47de3d4c325-11e4-ac3d-00144feab7de; Jason Corcoran, PROFILE: Mikhail Fridman – the Teflon oligarch new to
Londongrad, BNE INTELLINEWS, Apr. 11, 2016, http://www.intellinews.com/profile-mikhail-fridman-the-teflonoligarch-new-to-londongrad-94873/; Megan Davies & Melissa Akin, Russian risks bear down on oligarch Fridman,
REUTERS, June 6, 2012, https://uk.reuters.com/article/us-russia-tnkbp-fridman/russian-risks-bear-down-on-oligarchfridman-idUSBRE8550S420120606; Mikhail Fridman, Fridman: How I became an oligarch (Nov. 14, 2010),
available
at
https://www.opendemocracy.net/od-russia/mikhail-fridman/fridman-how-i-became-oligarch
(reproducing Fridman’s 2010 lecture entitled “How I Became an Oligarch”); Jack, supra note 13; Kandell, supra
note 1; Sergei Karpukhin, Few Oligarchs Can Beat Russia’s Weakening Economy, NEWSWEEK, Dec. 11, 2014,
http://www.newsweek.com/few-oligarchs-can-beat-russias-weakening-economy-290984; Kramer, supra note 1;
Levine, supra note 1 (discussing relationship between Fridman and Putin in light of Fridman’s business moves in oil
industry); Henry Meyer, et al., Putin Critics Are Advising the U.S. on its New Oligarchs List, BLOOMBERG, Jan. 26,
2018, https://www.bloomberg.com/news/articles/2018-01-26/kremlin-foes-advise-u-s-on-sanctions-as-oligarch-listlooms (noting that Fridman and Aven may be included on U.S. Treasury Department list of “the most senior foreign
political figures and oligarchs in the Russian Federation, as determined by their closeness to the Russian regime and
their net worth”); Karina Orlova, Russia’s Great Bank Takeover, THE AMERICAN INTEREST, Jan. 12, 2018,
https://www.the-american-interest.com/2018/01/12/russias-great-bank-takeover/ (discussing the Kremlin’s attack on

9

Case 1:17-cv-02041-RJL Document 20-1 Filed 01/29/18 Page 17 of 48

close relationship to the highest reaches of the Russian government, and forged a series of
friendships and alliances with Russian luminaries and politicians.” OAO Alfa Bank, 387 F. Supp.
2d at 26. Aven has a long-standing relationship with Putin because Putin “worked for [Aven]
when [Aven] was a minister.” Id. at n.15.25 Fridman is “one of the most powerful and efficient
lobbyists in the Kremlin with its new master [Putin].” Id. Alfa was “one of a handful of private
financial companies with a special, direct line to the Kremlin.” Id. at n.23.
Recent press reinforces that Judge Bates’ summary of Plaintiffs’ relationship with the
Kremlin as of 2005 is still accurate. One recent publication referred to Fridman as “President
Vladimir Putin’s favorite oligarch.”26 An international affairs publication observed in 2012 that
TNK-BP “benefits from . . . Russian shareholders with close ties to Putin, including German
Khan.”27 And the press has observed, in terms echoing CIR 112, that “it is acknowledged that
Alfa Group’s consortium of billionaires enjoys excellent communication channels with the
Kremlin. A recent paper from Oxford University’s Institute for Energy concluded that the group
can command direct access to Vladimir Putin and Dmitry Medvedev while bypassing any
government gatekeepers.”28

private banks and noting that “of the top 10 largest Russian banks today, the only privately owned one that has not
been targeted by the authorities is Alfa Bank, owned by Putin’s long-time crony Mikhail Fridman”); see also
Mikhail Zygar, All of the Kremlin’s Men: Inside the Court of Vladimir Putin 57 (2016), available at
https://books.google.com/books?id=ETrXCwAAQBAJ&q=aven#v=snippet&q=aven&f=false (noting Putin as being
“indebted” to Aven and Putin’s blessing of the merger between Alfa Group subsidiary TNK and Britain’s BP);
Andrew Jack & Arkady Ostrovsky, Power broker in Russia’s shifting scene: Alfa boss Mikhail Fridman, FIN.
TIMES, Aug. 29, 2003 (“Mr. Fridman has bridged the transition to the new regime of President Vladimir Putin more
smoothly than most, and has gone further in restructuring and selling interests in his businesses.”).
25

Aven even keeps a photo of himself and Putin in his home office. See Jack, supra note 13.

26

Kandell, supra note 1.

27

Russia: Is the Kremlin Ending TNK-BP’s Infighting?, STRATFOR WORLDVIEW, (May 30, 2012, 10:01 GMT),
https://worldview.stratfor.com/analysis/russia-kremlin-ending-tnk-bps-infighting.
28

Michael O’Farrell, Anglo’s Partnership with Ruthless Russian Oligarchs, IRISH MAIL, Nov. 4, 2012,
https://www.pressreader.com/ireland/the-irish-mail-on-sunday/20121104/281676842172543.

10

Case 1:17-cv-02041-RJL Document 20-1 Filed 01/29/18 Page 18 of 48

In addition, the press has scrutinized to Fridman’s willingness to push boundaries with
Putin insiders in his business ventures, while noting that “Alfa has managed to avoid trouble with
the Kremlin itself,” including through Aven, “an old friend of Mr. Putin who meets the president
regularly.”29 Fridman himself “says he’s careful to avoid anything that the Kremlin would see as
a challenge to its control of national politics.”30 Putin’s recent directive to the Alfa shareholders
to reinvest the proceeds of the sale of TNK-BP in Russia and Plaintiffs’ apparent willingness to
ignore that instruction without consequence has also garnered public attention.31
Plaintiffs have not been passive subjects of the media attention on their relationship with
the Kremlin, but have actively engaged in it and courted it. Plaintiffs have given frequent
interviews to journalists and have spoken publicly on their relationship with the Russian state.32
See also OAO Alfa Bank, 387 F. Supp. 2d at 45 (noting that Fridman and Aven “have written
articles in Russian newspapers, given interviews to newspapers and other media outlets

29

Gregory L. White, As Russia Squeezes Big Business, A Tycoon Decides to Pick a Fight, WALL ST. J., Oct. 6,
2005, https://www.wsj.com/articles/SB112856247619561303.
30

Id.

31

Aris, supra note 23 (“But it seems all Alfa’s new investments are going on outside of Russia. . . . Ironically, he
has been allowed to do this despite Putin’s warning to keep the money in the motherland. The fact that he could is a
testament to the work that Aven has done behind the scenes to shore up Alfa political krysha, or protection in
government circles.”); How Russia’s 20 biggest billionaires hide their fortunes from the government, supra note 23
(Putin said in “televised news conference . . . that he ‘hoped’ the billionaires who sold their 50% stake in TNKBP -... would reinvest the proceeds in their home country. . . . So far, there’s been little money flowing back to
Russia.”).
32

See, e.g., Mike Cummings, Aven offers inside account of the makings of modern Russia, YALE NEWS (Nov. 13,
2017), https://news.yale.edu/2017/11/13/aven-offers-inside-account-making-modern-russia; Kristina Subbotina,
Exclusive “No Tie” Interview With Head of the Alfa Banking Holding, Petr Aven on Business, Childhood and
Friends, JEWISH BUSINESS NEWS, Nov. 19, 2015, http://jewishbusinessnews.com/2015/11/19/exclusive-no-tieinterview-with-alfa-banks-president-peter-aven-on-business-childhood-and-friends/ (Aven suggesting that Fridman
partnered with him because of his “useful contacts at the government”); Gregory L. White, TNK-BP Russian
Partner
Relishes
Conflict,
WALL
ST.
J.,
Nov.
14,
2011,
https://www.wsj.com/articles/SB10001424052970203503204577036000854767804 (interviewing German Khan);
Jack, supra note 13 (interviewing Aven); Chazan, supra note 24 (interviewing Fridman and quoting Fridman as
saying he “never wanted to challenge authority . . . We always followed this philosophy — always to be loyal and
friendly [to the government] but never to be too close.”); Mikhail Fridman, Fridman: How I became an oligarch,
supra note 24; Jack & Ostrovsky, supra note 24 (Fridman stating “The rules of business are quite different to
western standards. I don’t want to lie and play this game. To say one can be completely clean and transparent is not
realistic.”).

11

Case 1:17-cv-02041-RJL Document 20-1 Filed 01/29/18 Page 19 of 48

throughout the world (including ABC’s Nightline and CNN), spoken on economic reform issues
to international audiences, and developed a well-coordinated and sophisticated public relations
strategy through in-house press departments, external public relations firms, and corporate
websites.”). Just three months ago, in a public forum moderated by Russian Forbes, Fridman
“spoke about Alfa Group’s strange relationship to the Russian authorities,” in response to a
question about “why the Kremlin has not attacked such a huge conglomerate.”33 Fridman used
an analogy of humans and hippopotami, saying that the “main thing” in avoiding an attack is not
getting between the hippopotamus (i.e., the Russian state) and “the water.”34
iii. Persistent Allegations of Wrongdoing in the Media
The media attention focused on Plaintiffs also reports and comments on widespread,
ongoing allegations of wrongdoing by the oligarch Plaintiffs going back decades. Indeed, the
article that was the subject of Aven and Fridman’s failed defamation claim in OAO Alfa Bank
reported that Russian intelligence reports claimed that “Alfa Bank, one of Russia’s largest and
most profitable, as well as Alfa Eko, a trading company, had been deeply involved in the early
1990s in laundering of Russian and Colombian drug money and in trafficking drugs from the Far
East to Europe,” and that “Alfa Groups top executives, oligarchs Mikhail Fridman and Pyotr
Aven, ‘allegedly participated in the transit of drugs from Southeast Asia through Russia and into
Europe.’”35 The article detailed, among other things, the intelligence reports’ statements on Alfa
Bank laundering drug funds from Russian and Colombian cartels; an incident in which the

33

Russian media roundup, October 7-13, 2017, INSTITUTE OF MODERN RUSSIA, Republic gets political advice
from Alfa Group co-founder Mikhail Fridman, at ¶ 4, Oct. 13, 2017, https://imrussia.org/en/the-rundown/mediamust-reads/2862-russian-economy-suffers,-saudi-king-in-moscow,-lessons-for-intelligentsia.
34

Id.

35

Knut Royce & Nathaniel Heller, Cheney led Halliburton to feast at federal trough, CTR. FOR PUB. INTEGRITY
(Aug. 2, 2000, 10:03 pm), https://www.publicintegrity.org/2000/08/02/3279/cheney-led-halliburton-feast-federaltrough.

12

Case 1:17-cv-02041-RJL Document 20-1 Filed 01/29/18 Page 20 of 48

residents of a Siberian town were poisoned by heroin-laced sugar that had been shipped in an
Alfa Eko rail car; and Alfa officials’ cooperation with Russian crime organizations.36
In reviewing these statements, Judge Bates noted that “Russian newspapers have
published repeated claims that Aven and Fridman have rigged the auction of state assets through
government connections, threatened the lives of government officials, ordered the assassination
of a mobster, and engaged in narcotics trafficking and money laundering.” OAO Alfa Bank, 387
F. Supp. 2d at 28.37 Allegations of fraud, corruption, and general misconduct have persisted in
the press coverage of Aven and Fridman and their Alfa entities, including coverage related to a
recent bribery scandal involving a Fridman-owned telecommunications company that resulted in
a nine-figure settlement with the U.S. Department of Justice.38 Khan has similarly been dogged
by frequent allegations of unethical and criminal activity.39

36

Id.

37

Judge Bates also noted that “[a]s early as during Aven’s tenure in the Yeltsin government, a corruption task force
informed Yeltsin that Aven was engaged in various misdeeds, including drug trafficking.” OAO Alfa Bank, 387 F.
Supp. 2d at 28 n.26; see also KAREN DAWISHA, PUTIN’S KLEPTOCRACY: WHO OWNS RUSSIA 18-20 (2014) (special
commission report in 1993 “recounted widespread instances of ‘bribery of officials, blackmail, and the illegal
transfer of currency resources to foreign banks,’ with specific ministers sanctioned by name, including Minister of
Foreign Economic Relations Pyotr Aven”). And “[e]ven Fridman has acknowledged . . . that the ‘rules of business’
in Russia ‘are quite different to western standards …. To say one can be completely clean and transparent is not
realistic.” OAO Alfa Bank, 387 F. Supp. 2d at at 29 & n.9.
38

See Agustín Marco, The FBI and the SEC investigate a Spanish company for bribes to Russian politicians, EL
CONFIDENCIAL, Dec. 30, 2016, https://www.elconfidencial.com/empresas/2016-12-30/fbi-sec-investigan-grupo-zedsobornos-politicos-rusos_1308929/ (reporting that U.S. and Spanish authorities investigated whether company
owned by Fridman paid bribes to “relatives of one of the most important ministers of the Kremlin”); Agence FrancePresse, VimpelCom pays $835m to US and Dutch over Uzbekistan telecom bribes, GUARDIAN, Feb. 18, 2016,
https://www.theguardian.com/world/2016/feb/19/vimpelcom-pays-835m-to-us-and-dutch-over-uzbekistan-telecomsbribes (reporting that a mobile phone company largely owned by Fridman paid $835 million to settle charges that it
paid bribes to enter the Uzbekistan telecommunications market); The Economist Intelligence Unit, VimpleCom
admits to bribery, THE ECONOMIST (Mar. 2, 2016), http://www.eiu.com/industry/article/1263994310/vimpelcomadmits-to-bribery/2016-03-02 (same); Dutch subsidiary of Russia’s Alfa Bank raided in money laundering
investigation, REUTERS (Dec. 12, 2017), https://www.reuters.com/article/netherlands-russia-bank/corrected-dutchsubsidiary-of-russias-alfa-bank-raided-in-money-laundering-investigation-idUSL8N1OC4SM
(noting
that
Amsterdam Trade Bank, the “Dutch subsidiary of Russia’s Alfa Bank, owned by billionaire Mikhail Fridman, was
searched last week as part of an investigation into possible money laundering”); Spanish company Zed searched, son
of
Interior
Minister
and
Russian
oligarch
involved,
Crime
Russia
(June
30,
2017),
https://en.crimerussia.com/corruption/associated-with-fridman-and-kolokoltsov-spanish-company-zed-searched/
(reporting on Spanish investigation into Zed Worldwide group related to bribery of Russian officials, stating that
Spanish investigators “point to Russian-Israeli oligarch, the founder and shareholder of Alfa Group Mikhail

13

Case 1:17-cv-02041-RJL Document 20-1 Filed 01/29/18 Page 21 of 48

CIR 112 AND THE DOSSIER
As Plaintiffs acknowledge, Defendants did not author CIR 112. Plaintiffs’ Amended
Complaint alleges that, in 2016, Defendants were engaged to “gather discrediting information
about candidate Trump to thwart his presidential run, including any connections he might have to
Russian businesses or Russia’s government.” Am. Compl. ¶ 3. “Steele claims to have used his
own Russian sources . . . to compile the reports, which were then delivered to the Defendants
over the course of several months in 2016.” Id. ¶ 4. CIR 112 is one of seventeen reports that

Fridman” as “the person involved in bribes in Russia”); Mikhail Fridman’s right hand arrested over corruption in
Spain, Crime Russia (Jan. 17, 2017), https://en.crimerussia.com/gromkie-dela/mikhail-friedman-s-right-handarrested-over-corruption-in-spain/; see also, e.g., Bruck, supra note 4 (noting that when Russian government
privatized TNK by auctioning it off, government released “precise eligibility requirements” for auction and “those
requirements matched AAR’s qualifications exactly”); Eamon Javers, Spies, Lies & KPMG, BLOOMBERG
BUSINESSWEEK (Feb. 26, 2007, 12:00 AM), https://www.bloomberg.com/news/articles/2007-02-25/spies-lies-andkpmg (Alfa used former spies to infiltrate KPMG to obtain secrets from audits on Alfa’s rival); Jeff Patch, Did
Lobbyists Break the Law?, POLITICO (Mar. 14, 2007, 1:25 PM), https://www.politico.com/story/2007/03/didlobbyists-break-the-law-003137 (Congressional hearings into whether Alfa lobbyists who allegedly impersonated
spies to obtain audit documents broke U.S. law); White, supra note 29 (Alfa accused of paying witnesses and fraud).
39

See, e.g., Andrew E. Kramer, In Bid for BP’s State of Venture, a Former Spy Becomes the Focus, N.Y. TIMES,
July 24, 2012, http://www.nytimes.com/2012/07/25/business/global/rosneft-opens-talks-on-buying-bps-stake-in-oiljoint-venture.html (reporting that former TNK-BP employee accused Khan “of funneling hundreds of millions of
dollars in bribes to Russian officials in the guise of subcontracts”); Complaint ¶ 353, Norex Petroleum Ltd. v. Access
Indus., No. 02-cv-1499 (S.D.N.Y. Feb. 26, 2002) (detailing allegations of threats made by Khan to officials at a
targeted oil company and alleging that “TNK obtained control over [the target company] through extortion as
reflected by the threat of the armed thugs”); Callus, supra note 17 (alleging Khan threatened to harm former TNKBP employee to force him to confess to accepting bribes); id. (detailing that Khan responded to the employee’s
description of him as “extremely ruthless” by stating “as is well known . . . doing business in Russia is not for the
faint hearted”); Rowena Mason, TNK-BP internal fraud probe leads to 37 criminal cases, THE TELEGRAPH (Sep. 8,
2011), http://www.telegraph.co.uk/finance/newsbysector/energy/oilandgas/8751128/TNK-BP-internal-fraud-probeleads-to-37-criminal-cases.html (disclosing that probe at TNK-BP had detailed hundreds of allegations of
unscrupulous behavior and 37 criminal cases involving employees and contractors); Holly Watt & Tim Ross,
WikiLeaks: BP’s new Russian partner sees Godfather films as ‘manual for life’, THE TELEGRAPH (Feb. 1, 2011, 6:30
AM), http://www.telegraph.co.uk/news/worldnews/wikileaks/8294428/WikiLeaks-BPs-new-Russian-partner-seesGodfather-films-as-manual-for-life.html (according to U.S. diplomatic cables published by WikiLeaks, Khan
considered The Godfather movie to be his “manual for life” and he attended dinners “armed with a chrome-plated
pistol”); Kseniya Zaslavskiy, Russia’s 2008 “spying scandal” guise for FSB-oligarch takeover of TNK-BP,
EUROMAIDEN PRESS (Sept. 9, 2016), http://euromaidanpress.com/2016/09/09/russias-2008-spying-scandal-guisefor-fsb-oligarch-takeover-of-tnk-bp/; TOM BOWER, OIL: MONEY, POLITICS, AND POWER IN THE 21ST CENTURY (2010)
(describing Khan as “an enforcer” who was “willing to throw a grenade into a room just to see what opportunities
would arise out of the chaos”); Courtney Weaver, Cash-laden oligarchs hunt pastures new, FIN. TIMES, April 5,
2013, https://www.ft.com/content/25bf411a-9e01-11e2-bea1-00144feabdc0 (quoting former TNK-BP associate as
saying “Say what you want about the ethical things but [Khan is] good at squeezing efficiency out of [Russian oil
and gas companies]”).

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Steele authored. Id. ¶ 2. Together, those reports have become known in the popular media as
“the Dossier.” CIR 112 consists of less than one-and-a-half pages. Ex. 1.
The Amended Complaint alleges that Defendants “arranged for Steele to brief selected
members of the print and online media about the information he was compiling on candidate
Trump.” Am. Compl. ¶ 6. Plaintiffs do not allege that BuzzFeed, Inc., received such a briefing.
Plaintiffs also do not allege that Defendants gave copies of either CIR 112 or the Dossier to
BuzzFeed or any other journalist or media organization.

On January 10, 2017, BuzzFeed

published all of the reports comprising the Dossier on the Internet. Id. ¶ 8.
ARGUMENT
I.

STANDARD OF LAW
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Nurriddin v. Bolden, 818 F.3d 751, 756 (D.C. Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)).

The court need not “accept inferences drawn by [a] plaintiff[] if such

inferences are unsupported by the facts set out in the complaint.” Id. (quoting Kowal v. MCI
Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)) (emphasis added). Nor must the court
accept as true legal conclusions or “mere conclusory statements.” Iqbal, 556 U.S. at 678.
Instead, “determining whether a complaint states a plausible claim [is] . . . a context-specific task
that requires the reviewing court to draw on its judicial experience and common sense.” Id. at
679. “[U]nless a plaintiff is able to nudge his or her claim ‘across the line from conceivable to
plausible,’ the complaint must be dismissed.” Deripaska, 2017 WL 4685297, at *2 (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 571 (2007)).

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To state a claim for defamation under District of Columbia law, the complaint must
plausibly allege that the statements at issue are: (1) defamatory; (2) “of and concerning” the
plaintiff(s); (3) capable of being proven true or false; (4) false; and (5) made with requisite
degree of fault. Coles v. Wash. Free Weekly, Inc., 881 F. Supp. 26, 30 (D.D.C. 1995); see also
Weyrich v. New Republic, Inc., 235 F.3d 617, 623 (D.C. Cir. 2001). And, of course, the
defendant must have “published the statement without privilege to a third party.” Jankovic v.
Int’l Crisis Grp., 494 F.3d 1080, 1088 (D.C. Cir. 2007). In assessing “whether a complaint states
a claim, the court may consider the facts alleged in the complaint, documents attached thereto or
incorporated therein, and matters of which it may take judicial notice.” Farah v. Esquire Mag.,
736 F.3d 528, 534 (D.C. Cir. 2013). Judicial notice is properly taken of publicly available
publications, including books, magazines, and newspapers. See id.; Von Saher v. Norton Simon
Museum of Art at Pasadena, 592 F.3d 954 (9th Cir. 2010); Premier Growth Fund v. Alliance
Capital Mgmt., 435 F.3d 396, 401 n.15 (3d Cir. 2006); Effie Film, LLC v. Pomerance, 909 F.
Supp. 2d 273, 299 (S.D.N.Y. 2012).
“Given the threat to the first amendment posed by nonmeritorious defamation actions, it
is particularly appropriate for courts to scrutinize such actions at an early stage of the
proceedings to determine whether dismissal is warranted.” Coles, 881 F. Supp. at 30. The D.C.
Circuit has long recognized that, in defamation cases, “summary procedures are . . . essential”
because “the stake here, if harassment succeeds, is free debate.” Wash. Post Co. v. Keogh, 365
F.2d 965, 968 (D.C. Cir. 1966). This frequently means dismissal on a motion to dismiss
because, “unlike in most litigation, in a libel suit the central event—the communication about
which suit has been brought—is ordinarily before the judge at the pleading stage” and he “may

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assess it upon a motion to dismiss, firsthand and in context.” 2 Robert D. Sack, Sack on
Defamation § 16:2.1 (5th ed. 2017).
II.

STATEMENTS IN CIR 112 ABOUT THE OLIGARCH PLAINTIFFS, SUCH AS
HAVING A GOOD RELATIONSHIP WITH PRESIDENT PUTIN, ARE NOT
DEFAMATORY.
“Under the First Amendment, liability for defamation arises only if, at a minimum, a

defendant’s statement ‘reasonably implies false and defamatory facts.’” Farah, 736 F.3d at 534
(quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990)) (emphasis added). Because of
this First Amendment protection, the Court must make three threshold inquiries as a matter of
law into the allegedly defamatory statements: (1) whether they can be reasonably interpreted as
stating “actual facts” about Plaintiffs; (2) whether they are “verifiable,” and not “so imprecise or
subjective that [they are] not capable of being proved true or false;” and (3) whether they are
“reasonably capable of defamatory meaning.” Id. at 534-35. With one possible exception, none
of the allegedly defamatory statements in CIR 112 satisfy these requirements.
A.

The Title of CIR 112 Is Not Defamatory.

Plaintiffs assert that the title of CIR 112—RUSSIA/US PRESIDENTIAL ELECTION:
KREMLIN-ALPHA GROUP CO-OPERATION— is defamatory because it “suggests that Alfa
and its executives, including the Plaintiffs, ‘cooperated’ in an alleged Kremlin-orchestrated
campaign to interfere in the 2016 U.S. presidential election.” Am. Compl. ¶ 19. To make this
argument, Plaintiffs ignore the content of CIR 112 and ask the Court to consider the title on its
own.
CIR 112’s text contains no references to the 2016 U.S. presidential election, Hillary
Clinton or Donald Trump. The body of the report makes clear that its author did not assert any
involvement or cooperation by the Alfa Group in the U.S. presidential election. In fact, the body
of the report makes clear that the “co-operation” referenced in the title refers to the “closeness”
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of the Alfa Group and the Kremlin and the “favours . . . done in both directions.” Ex. 1. As a
result, Plaintiffs’ claim that the “co-operation” referenced in the title refers to the U.S.
presidential election requires the reader to ignore the body of CIR 112. The case law does not
allow for titles to be read in this manner. See, e.g., Q Int'l Courier, Inc. v. Seagraves, No. 951554 (RMU), 1999 WL 1027034, at *4 (D.D.C. Feb. 26, 1999) (“adopt[ing] the majority rule
that headlines are to be construed in conjunction with their accompanying articles” and holding
the headline “Two Firms Nailed for Postage Fraud” was not actionable because the article made
clear that the term “nailed” meant “caught” rather than “arrested”); see also Hogan v. Winder,
762 F.3d 1096, 1108 (10th Cir. 2014) (“majority of jurisdictions hold that a headline cannot be
severed from the body of the article when undertaking defamation analysis”).
And, even if the Court could consider the title of CIR 112 separate and apart from the
body of CIR 112, the title—like much of the rest of CIR 112—is not capable of defamatory
meaning because it is not a statement of fact. See Farah, 736 F.3d at 534.
B.

The First Paragraph of CIR 112 Is Not Defamatory.

The first paragraph of CIR 112 reads as follows:
Speaking to a trusted compatriot in mid-September 2016, a top
level Russian government official commented on the history and
current state of relations between President PUTIN and the Alpha
Group of businesses led by oligarchs Mikhail FRIDMAN, Petr
AVEN and German KHAN. The Russian government figure
reported that although they had had their ups and downs, the
leading figures in Alpha currently were on very good terms with
PUTIN. Significant favours continued to be done in both
directions, primarily political ones for PUTIN and business/legal
ones for Alpha. Also, FRIDMAN and AVEN continued to give
informal advice to PUTIN on foreign policy, and especially about
the US where he distrusted advice being given to him by officials.
Ex. 1.

Plaintiffs do not allege that these statements are false, absent Plaintiffs’

reinterpretation of them. Coles, 881 F. Supp. at 31 (“That the truth carries a negative implication

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does not give the Plaintiff a meritorious defamation cause of action.”). Instead, Plaintiffs claim
that the “reasonable reading” of this paragraph is that
Plaintiffs Fridman, Aven, and Khan, along with Alfa, are alleged to
maintain a highly inappropriate, and even criminal, relationship
with Putin based on criminal interaction dating back to the 1990s.
By clear and defamatory implication, CIR 112 purports to tie the
Plaintiffs to a Kremlin-orchestrated campaign to interfere in the
2016 U.S. election.
Am. Compl. ¶ 23. Those words, however, are not in the text of CIR 112 and are not a fair
interpretation of that text.
First, Plaintiffs invent the paragraph’s “clear . . . implication” that Plaintiffs are tied to “a
Kremlin-orchestrated campaign to interfere in the 2016 U.S. election.” Id. CIR 112 says
nothing of the sort and is not fairly read to so imply. Second, Plaintiffs read defamatory
implications from the description of Plaintiffs’ and Alfa’s relationship with Putin where there are
none. There is nothing illegal about being on “very good terms” with the Russian president or
“giv[ing] informal advice” to him on foreign policy. Id. ¶ 22. These statements are not capable
of defamatory meaning.
Plaintiffs struggle to read something nefarious into the statement that “[s]ignificant favors
continue to be done in both directions.” Favors are not illegal without more, and the text
challenged here does not mention or imply illegality. For example, Merriam Webster provides
as definitions of favor, among others, “friendly regard shown toward another especially by a
superior,” “approving consideration or attention,” “gracious kindness,” “a token of love (usually
a ribbon) usually worn conspicuously,” and “a special privilege or right granted or conceded.”40

40

Favor,
Merriam-Webster
Dictionaries,
webster.com/dictionary/favor?utm_campaign=sd&utm_medium=serp&utm_source=jsonld.

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These dictionary definitions also show that CIR 112’s reference to “[s]ignificant favors”
is exactly the kind of vague, “loosely definable” and “variously interpretable” statement that
does not constitute a verifiable fact and cannot support a defamation claim. Ollman v. Evans,
750 F.2d 970, 980-81 (D.C. Cir. 1984). Courts have repeatedly held that such statements are not
actionable because they cannot reasonably be interpreted to convey actual facts, let alone
verifiable ones. See, e.g., Old Dominion Branch No. 496, Nat’l Ass’n of Letter Carriers v.
Austin, 418 U.S. 264, 283-87 (1974) (“use of words like ‘traitor’ cannot be construed as
representation of fact”); Weyrich, 235 F.3d at 624-25 (statement that politician “suffer[ed] bouts
of pessimism and paranoia” not actionable because description was “not a verifiably false
attribution in fact of a ‘debilitating mental condition’”); Boley v. Atl. Monthly Grp., 950 F. Supp.
2d 249, 260 (D.D.C. 2013) (characterization of individual as “evil” was “not a verifiable
statement of fact”); see also Adelson v. Harris, 973 F. Supp. 2d 467, 493 (S.D.N.Y. 2013)
(holding that terms “dirty money” and “tainted money” are “not be susceptible of being proven
true or false”); McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir. 1987) (“The lack of precision [in
the meaning of the word ‘scam’] makes the assertion ‘X is a scam’ incapable of being proven
true or false.”); Phantom Touring, Inc. v. Affiliated Publ’ns, 953 F.2d 724, 728 (1st Cir. 1992)
(“Whether appellant’s ‘Phantom’ is ‘fake’ or ‘phony’ is [] unprovable, since those adjectives
admit of numerous interpretations.”); Buckley v. Littell, 539 F.2d 882, 893 (2d Cir. 1976) (“[T]he
use of ‘fascist,’ ‘fellow traveler’ and ‘radical right’ as political labels . . . cannot be regarded as
having been proved to be statements of fact, among other reasons, because of the tremendous
imprecision of the meaning and usage of these terms”); Wait v. Beck’s N. Am., Inc., 241 F. Supp.
2d 172, 183 (N.D.N.Y. 2003) (“Statements that someone has acted . . . unethically generally are
constitutionally protected statements of opinion.”).

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Furthermore, Plaintiffs, particularly Fridman and Aven, have publicly embraced their
relationship with Putin and the Russian government. See, e.g., OAO Alfa Bank, 387 F. Supp. 2d
at 26 & n.23; supra note 32. They obviously do not find it damaging to have a good relationship
with their president.

Judge Bates recognized that, “as two of the most powerful Russian

oligarchs,” Fridman and Aven “have maintained a close relationship to the highest reaches of the
Russian government, and forged a series of friendships and alliances with Russian luminaries
and politicians.” OAO Alfa Bank, 387 F. Supp. 2d at 26. Under these circumstances, it cannot
be defamatory for Steele to memorialize in CIR 112 the current state of their relations. See
Deripaska, 2017 WL 4685297, at *7 (“Moreover, it is readily available, judicially noticeable
information that [Russian oligarch] Deripaska openly associates himself with the Russian
government. For the AP to do the same cannot be defamatory, even if it were not true.”).
As a final point, the first sentence of this paragraph is the only place in CIR 112 in which
Plaintiff German Khan’s name appears. This single reference to Khan as an oligarch who leads
the “Alpha Group” is not defamatory.41
C.

With the Possible Exception of One Sentence, the Second Paragraph of CIR
112 Is Not Defamatory.

The second paragraph of CIR 112 states:
Although FRIDMAN recently had met directly with PUTIN in
Russia, much of the dialogue and business between them was
mediated through a senior Presidential Administration official,
Oleg GOVORUN, who currently headed the department therein
responsible for Social Co-operation With the CIS. GOVORUN
was trusted by PUTIN and recently had accompanied him to
Uzbekistan to pay respects at the tomb of former president
41

Statements about Alfa are not “of and concerning” Khan. “‘[D]efamation is personal; . . . allegations of
defamation by an organization and its members are not interchangeable. . . . [S]tatements which refer to an
organization do not implicate its members.” Jankovic v. Int’l Crisis Grp., 494 F.3d 1080, 1089 (D.C. Cir. 2007)
(quoting Provisional Gov’t of New Afrika v. ABC, Inc., 609 F. Supp. 104, 108 (D.D.C. 1985)). Thus, even if the
Court were not to dismiss the Amended Complaint in its entirety (which it should), the Court should dismiss Khan
as a plaintiff.

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KARIMOV. However according to the top level Russian
government official, during the 1990s GOVORUN had been Head
of Government Relations at Alpha Group and in reality, the
“driver” and “bag carrier” used by FRIDMAN and AVEN to
deliver large amounts of illicit cash to the Russian president, at that
time deputy Mayor of St Petersburg. Given that and the continuing
sensitivity of the PUTIN-Alpha relationship, and need for plausible
deniability, much of the contact between them was now indirect
and entrusted to the relatively low profile GOVORUN.
Ex. 1. Plaintiffs do not deny or claim as defamatory the first sentence of this second paragraph
stating that Fridman and Putin recently met in Russia in a meeting mediated through Oleg
Govorun. The second sentence about Govorun does not concern Plaintiffs. The third sentence is
the lone statement in CIR 112 that could be potentially defamatory, suggesting that Fridman and
Aven (not Khan) used an intermediary to deliver “illicit cash” to Putin in the 1990s. This
sentence is potentially defamatory because it suggests that Fridman and Aven engaged in
criminal activity many years ago. It is not defamatory for the reasons that Plaintiffs argue: that
the “statements, when considered in the Trump/Russia context of the Dossier as a whole, imply
that the alleged improper relationship between Alfa, the Plaintiffs, and Putin . . . is currently
ongoing, and that Govorun, the alleged ‘bag carrier’ of the 1990s, . . . serves as the trusted
intermediary between the Plaintiffs and Putin the alleged cooperation of Plaintiffs in the
Trump/Russia conspiracy.” Am. Compl. ¶ 26. There is nothing in CIR 112 that remotely
suggests that Plaintiffs are cooperating “in the Trump/Russia conspiracy,” let alone that Govorun
is their intermediary related to that conspiracy. Plaintiffs have invented the suggestion that this
sentence concerns events occurring in 2016 when the sentence specifically says “in the 1990s.”
But, as explained below, Plaintiffs cannot state a defamation claim based on that
corruption-related allegation without alleging actual malice, as the public controversy concerning
them as Russian oligarchs has already been determined to include “corruption in post-Soviet

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Russia.” OAO Alfa Bank, 387 F. Supp. 2d at 43 (dismissing defamation claim by Aven, Fridman
and Alfa). And, as discussed in Section IV, they have failed to adequately allege actual malice.
D.

The Third Paragraph of CIR 112 Is Not Defamatory.

The third paragraph states:
The top level Russian government official described the PUTINAlpha relationship as both carrot and stick. Alpha held
‘kompromat’ on PUTIN and his corrupt business activities from
the 1990s whilst although not personally overly bothered by
Alpha's failure to reinvest the proceeds of its TNK oil company
sale into the Russian economy since, the Russian president was
able to use pressure on this count from senior Kremlin colleagues
as a lever on FRIDMAN and AVEN to make them do his political
bidding.
Ex. 1. This paragraph is similar to the first paragraph in that it does not contain any
allegations of illegal conduct by Plaintiffs.

Instead, it contains only “loose, figurative, or

hyperbolic language” that cannot be reasonably interpreted as stating actual, provable facts about
Plaintiffs. Milkovich, 497 U.S. at 21-23.
The first sentence recounts a government official’s description of the Putin-Alfa
relationship using a metaphor that the relationship is “both carrot and stick.” Such a figure of
speech is plainly not “objectively capable of proof or disproof.” Ollman, 750 F.2d at 981 (noting
that “a reader cannot rationally view an unverifiable statement as conveying actual facts”).
The second sentence contains missing words and/or grammatical errors that make it hard
to understand, much less have defamatory meaning.

The word “kompromat” refers to

“compromising material used to discredit rivals in politics or business or just settle personal
scores.”42 Even if “Alpha held ‘kompromat’ on Putin” could be understood as a statement of a

42

Greg Myre, A Russian Word Americans Need to Know: ‘Kompromat,’ NAT. PUB. RADIO (Jan. 11, 2017, 3:11
PM),
http://www.npr.org/sections/parallels/2017/01/11/509305088/a-russian-word-americans-need-to-knowkompromat.

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verifiable fact, the assertion that Alfa possessed unspecified material that could be embarrassing
to Putin does not have any defamatory meaning as to Plaintiffs, or even as to Putin.
The other allegation embedded in this second sentence is that Putin, despite not being
personally bothered by Alfa’s failure to reinvest in the Russian economy proceeds of its TNK oil
company sale, is able to use pressure from that failure to make Fridman and Aven “do [Putin’s]
political bidding.” That allegation—that Putin “was able to use pressure . . . from senior Kremlin
colleagues as a lever on FRIDMAN and AVEN to make them do his political bidding”—is also
not defamatory. It suggests no illegal conduct whatsoever on the part of Fridman or Aven. And,
additionally, it is “so imprecise [and] subjective that it is not capable of being proved true or
false,” and therefore “is not actionable in defamation.” Farah, 736 F.3d at 534-35.
Plaintiffs’ own assertions about why this paragraph is defamatory are divorced from the
actual text, once again substituting new words and thoughts for those in the text. Plaintiffs claim
that the paragraph “suggests that Plaintiffs Fridman and Aven use their knowledge of past
bribery of Putin—‘kompromat’—as a means of criminally extorting continuing favorable
treatment for their business interests from his government.” Am. Compl. ¶ 28. Any suggestion
that Plaintiffs are “criminally extorting continuing favorable treatment for their business
interests” is not related to the text of this paragraph. Plaintiffs then invent the non sequitur that
the paragraph “implies that Alfa and two of its largest beneficial owners willingly maintain a
close relationship with Putin and cooperated in some unspecified way in the Kremlin’s alleged
campaign to interfere in the U.S. election in an effort to avoid retribution from Putin for not
reinvesting business proceeds in Russia.” Id. No such implication exists. This paragraph—like
the entirety of CIR 112—has nothing whatsoever to do with interference in the U.S. election and

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Plaintiffs’ suggestion to the contrary is imagined. (Nor does the paragraph assert the willing
maintenance of a close relationship, although that characterization would not be defamatory.)
III.

PLAINTIFFS ARE PUBLIC FIGURES FOR THE PURPOSES OF THE PUBLIC
CONTROVERSIES ADDRESSED BY CIR 112: RUSSIAN OLIGARCHS’
POLITICAL-BUSINESS RELATIONSHIPS WITH THE RUSSIAN
GOVERNMENT AND PRESIDENT PUTIN AND THE CONDUCT OF THOSE
PARTIES WITH RESPECT TO THOSE RELATIONSHIPS.
Even if the Court concludes that CIR 112 contains statements capable of being

defamatory, the Court should dismiss the Amended Complaint because Plaintiffs are public
figures whose complaint wholly fails to plead the requisite actual malice. This Section III
addresses the public figure issue, and Section IV addresses the malice issue.
A.

Legal Standard

Whether Plaintiffs are public figures is a “matter of law for the court to decide.”
Tavoulareas v. Piro, 817 F.2d 762, 772 (D.C. Cir. 1987) (citations omitted). The test to
determine whether a plaintiff is a limited purpose public figure in the D.C. Circuit examines
whether: (1) there is a pre-existing public controversy; (2) the plaintiff played a significant role
in that controversy; and (3) the allegedly defamatory statements are germane to the plaintiff’s
participation in the controversy. Waldbaum v. Fairchild Publ’ns, 627 F.2d 1287, 1296-98 (D.C.
Cir. 1980). The “touchstone” to this limited public figure analysis is “determining whether an
individual has assumed a role of especial prominence in the affairs of society that invites
attention and comment.” Jankovic v. Int'l Crisis Grp., 822 F.3d 576, 585 (D.C. Cir. 2016)
(alterations & internal quotation marks omitted).
Courts regularly resolve the issue of a defamation plaintiff’s status on motions on the
basis of pleadings and documents subject to judicial notice. See, e.g., Deripaska, 2017 WL
4685297, at *6; Hourani v. Psybersolutions LLC, 164 F. Supp. 3d 128, 143 (D.D.C. 2016), aff'd,
690 F. App’x 1 (D.C. Cir. 2017); Boley, 950 F. Supp. 2d at 262.
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B.

Public Controversy

A public controversy exists concerning the entanglement of the Russian oligarchs’
political and business interests and those of the Russian state, including the questionable,
unethical and illegal conduct by actors on both sides. All of CIR 112’s challenged text concerns
that controversy. Statements concerning immoral, criminal or other wrongdoing by Russian
oligarchs on behalf of the Russian state or the Kremlin, or vice versa, relate to that controversy.
In OAO Alfa Bank, which involved the defamation claims of Plaintiffs Fridman, Aven
and Alfa Bank arising out of reports of corruption, drugs, money laundering and other misdeeds,
Judge Bates identified “the rise of the oligarchs and the decline of the Russian economy” into a
“criminal-syndicalist state” as a “public controversy.” 387 F. Supp. 2d at 43, 44. Judge Bates
described how, as the Russian economy privatized, a “group of individuals with close political
connections to the Yeltsin government amassed enormous wealth and power through the
wholesale transfer of prized state assets and shady deals with government officials.” Id. at 23.
“These tycoons, known as ‘oligarchs,’ rose to power based in large measure on their ability to
navigate and manipulate the rules of a corrupt and lawless post-Soviet Russian economy.” Id.
Judge Bates found that the “situation did not change when Vladimir Putin took power [in 2000].
‘Putin, said one analyst close to the Kremlin, has had dealings with several ‘oligarch’ groups.
The closest, at the moment, is Alfa Group, led by Pyotr Aven, who as Russia’s foreign trade
minister in 1992 approved Putin’s export contracts in St. Petersburg.’” OAO Alfa Bank, 387 F.
Supp. 2d at n.23.
Just last month, Judge Huvelle also found that a public controversy existed concerning
conduct by the Russian oligarchs on behalf of the Russian state, and vice versa. Deripaska, 2017
WL 4685297, at *4. In that case, another Russian oligarch, Oleg Deripaska, challenged as

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defamatory an article reporting that he hired Paul Manafort to promote Putin’s government’s
interests internationally. Id. at *1. Judge Huvelle looked at the news coverage related to
Deripaska’s “role as a Russian oligarch and one of Putin’s closest confidantes” and held that
“there can be no doubt that a public controversy exists relating to Russian oligarchs acting on
behalf of the Russian government,” which resulted in dismissal of the case. Id. at *4.
The conclusions of Judge Bates and Judge Huvelle about the public controversy
concerning the conduct of the Russian oligarchs and their relationship to the Kremlin are
supported by a huge public record.43 The media, including in the United States, has paid close
attention to the degree of the oligarchs’ influence on the Kremlin and the Kremlin’s control over
the oligarchs and their acts in service of the Kremlin.44 The relationship is sometimes reported
as symbiotic and sometimes reported as adversarial—but it is always the subject of public
scrutiny.
C.

Plaintiffs’ Prominence in the Controversy

As three of the most prominent Russian oligarchs, Plaintiffs frequently feature in the
controversy about the conduct of Russian oligarchs, including on behalf of or in cooperation with
the Kremlin.45 Judge Bates exhaustively documented Plaintiffs Fridman and Aven’s “special
prominence” in the controversy of the rise of the Russian oligarchy, finding them to be “two of
the richest and most powerful individuals” in Russia who “fully engaged in the worldwide debate

43

See supra note 1; see also supra note 24.

44

See, e.g., Kolesnikov, supra note 1 (“At the core of the Russian state system is an unspoken agreement: the
oligarchy supplies the needs and wants of the ruling authorities who, in turn, protect the oligarchy from
interference.”); Yaffa, supra note 1 (“[M]any oligarchs finance the ‘black ledger,’ which . . . is ‘money that does not
go through the budget but is needed by the state. . . . Funds leave the state budget as procurement orders [to
companies owned by the oligarchs], and come back as off-the-books cash, to be spent however the Kremlin sees
fit.”); Kramer & Herszenhorn, supra note 1 (“Critics say these relationships are evidence of deeply entrenched
corruption, which they view as essentially government-sanctioned theft invariably connected to Russia’s abundant
natural resources: gas, oil, minerals.”).
45

See supra note 24.

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regarding the causes and the cure for the corruption that has overcome the Russian economy, and
have themselves been the repeated target of allegations of collusions and illegality.” OAO Alfa
Bank, 387 F. Supp. 2d at 44. Judge Bates noted they had “risen to positions of unprecedented
influence in the political and economic affairs of their nation” and found them to be “the very
centerpiece of the public controversy.” Id. German Khan has played a nearly identical role in
the controversy as Fridman and Aven.46
Other guideposts that bear on the public figure inquiry are also present here. All of the
Plaintiffs’ careers have plainly “invite[d] attention and comment.” OAO Alfa Bank, 387 F. Supp.
2d at 44 (Aven and Fridman “are among the richest and most influential businesspeople in
Russia, if not the world”); see also Tavoulareas, 817 F.2d at 773 (fact that plaintiff was president
and COO of large multinational corporations relevant to “whether that person has invited
attention and comment”); Novecon v. Bulgarian-Am. Enter. Fund, 977 F. Supp. 45, 49 (D.D.C.
1997) (plaintiff’s “impressive resume is a factor in his public figure status”). They have also
been the subject of wide-spread news coverage, creating a “media footprint [that] is far greater
than those found sufficient to support public figure status in the past.” OAO Alfa Bank, 387 F.
Supp. 2d at 45. And Plaintiffs enjoy “access to the channels of effective communication that
enable them to respond to any defamatory statements.” Id. (internal quotation marks omitted)
(discussing Aven and Fridman’s frequent public appearances and interviews).47

46

See, e.g., German Khan the Oligarch Behind TNK, supra note 16; The billionaire oligarchs behind Alfa-AccessRenova (AAR), THE GUARDIAN (May 17, 2011), https://www.theguardian.com/business/2011/may/17/aarbillionaire-oligarch; Jen Alic, Alfa Billionaires Launch L1 Energy Fund, OILPRICE (June 22, 2013, 7:00 PM),
https://oilprice.com/Energy/Energy-General/Alfa-Billionaires-Launch-L1-Energy-Fund.html (describing Fridman’s
and Khan’s venture to reinvest the proceeds from the TNK-BP sale internationally).
47

See also, e.g., supra note 32; Mikhail Fridman, Fridman: How I became an oligarch, supra note 24; Weaver,
supra note 39 (noting that following the deal to sell their stake in TNK-BP, Fridman and Khan took “a dozen other
tycoons, two camels and a film crew from a Russian television channel” on a trek in the Israeli desert to celebrate
(emphasis added)).

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D.

Germaneness

CIR 112 directly concerns Plaintiffs’ relationship with the Kremlin and the nature of that
relationship and is therefore “germane” to the controversy. Boley, 950 F. Supp. 2d at 261. The
germaneness inquiry is whether the challenged statements are “wholly unrelated” to the public
controversy. Waldbaum, 627 F.2d at 1298; see also Tavoulareas, 817 F.2d at 773-74 (article
discussing alleged nepotism at an oil company was germane to public controversy on the
direction of national energy policy because the alleged nepotism was not “‘wholly unrelated’ to a
public controversy where the credibility and integrity of representatives of the oil industry had
become an issue”). It prevents publishers from “us[ing] an individual’s prominence in one area
of public life to justify publishing negligent falsehoods about an unrelated aspect of the
plaintiff’s life.”

Jankovic, 822 F.3d at 589.

CIR 112 is plainly germane to the public

controversy related the role of Russian oligarchs in Russian politics and the economy, including
Russian corruption. It reported on the current state of relations between the Kremlin and the
Russian oligarch Plaintiffs.

Further, even what Plaintiff alleges to be the defamatory

implications of the statements in CIR 112—that Plaintiffs had a corrupt and improper
relationship with President Putin—go directly to the heart of that controversy.
E.

The Public Controversy at Issue in CIR 112 Is Not the U.S. Presidential
Election, But Even if CIR 112 Touches on That Controversy, Plaintiffs Are
Still Public Figures.

Plaintiffs have said that they will argue that the “controversy that is the subject of this
case [is] alleged interference in the 2016 U.S. Presidential election.” See Reply in Supp. of Pls.’
Mot. in Response to the Oct. 30, 2017 Order to Show Cause, ECF Dkt. No. 12 at 3-4. This
attempt to narrow the relevant public controversy finds no support in the text of CIR 112. The
text of CIR 112 does not mention the 2016 presidential election, Donald Trump or Hillary

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Clinton. The fact that the report has the caption “Russia/US Presidential Election” before the
headline of “Kremlin-Alpha Group Co-operation” does not and cannot change the subject matter
of CIR 112 or the statements within it. CIR 112 does address the cooperation of the Kremlin and
Alfa, but not related to the U.S. presidential election.
Furthermore, even if any discussion of the election could be read into the text of CIR 112
(it mentions none explicitly), that would not change the fact that CIR 112 unquestionably
addresses the broader public controversy relating to misconduct in the relationship between the
Russian oligarchs and the Russian state in which Plaintiffs are public figures. In the Deripaska
case, another Russian oligarch, Oleg Deripaska sued the Associated Press over an article that
described how former Trump campaign manager Paul Manafort worked for Deripaska and that,
in Deripaska’s view, contained falsehoods involving criminal activity. Unable to dispute the
abundant news coverage of his “role as a Russian oligarch and one of Putin’s closest
confidantes,” Deripaska argued that the “essential subject matter” of the challenged article was
the narrower “Trump Campaign Controversy,” and that he was not a limited-purpose public
figure with regard to that controversy. 2017 WL 4685297, at *3. Judge Huvelle did not dwell
on Deripaska’s attempt to narrow the public controversy. She held that “there can be no doubt
that a public controversy exists relating to Russian oligarchs acting on behalf of the Russian
government. For the purposes of the article in question—which touches on this broader question
as well as narrower concerns relating to the Trump campaign’s contacts with Russia—Deripaska
is a limited-purpose public figure.” Id. at *4 (emphasis added). So too here.
IV.

PLAINTIFFS HAVE MADE NO FACTUAL ALLEGATIONS THAT SUPPORT A
PLAUSIBLE INFERENCE OF ACTUAL MALICE.
As limited-purpose public figures, Plaintiffs’ defamation claim can survive only if they

have adequately pleaded that the defamatory statement “was made with ‘actual malice’—that is,

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with knowledge that it was false or with reckless disregard of whether it was false or not.” New
York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1995). In a futile effort to meet this standard,
the Amended Complaint alleges that the “statements of CIR 112, published in an unverified
report attributed to an anonymous ‘top level Russian official’ of unknown credibility or
existence, raise a clear and plausible inference of reckless disregard of truth or falsity by
Defendants.” Am. Compl. ¶ 29; see also id. ¶ 4 (alleging “Defendants were aware that CIR 112
was not verified”); id. ¶ 18 (alleging Defendants published the Dossier not knowing “whether the
unverified, anonymous, inherently harmful accusations in CIR 112 were true or false”).
Such allegations do not come anywhere close to alleging actual malice. The D.C. Circuit
has held repeatedly that a defendant “has acted recklessly if the defendant in fact entertained
serious doubts as to the truth of his publication or acted with a high degree of awareness of
probable falsity.” Jankovic, 822 F.3d at 589 (internal quotation marks and alterations omitted).
Plaintiffs must allege “that the defendant in fact harbored subjective doubt . . . . The plaintiff[s]
can make this showing, for example, by offering evidence that ‘it was highly probable that the
story was (1) fabricated; (2) so inherently improbable that only a reckless person would have put
[it] in circulation; or (3) based on an unverified anonymous telephone call or some other source
that [defendant] had obvious reason to doubt.’” Id. at 589-90 (quoting Lohrenz v. Donnelly, 350
F.3d 1272, 1283 (D.C. Cir. 2003)). In other words, allegations that the Dossier was “unverified”
or that the source was “anonymous” or that Defendants did not know whether the Dossier’s
contents “were true or false” are insufficient. Am. Compl. ¶¶ 4, 8, 29. There are no allegations
that Defendants actually harbored subjective doubt here, and that is not surprising. CIR 112 was
authored by a highly regarded former British intelligence officer, described as a “sober, cautious

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and meticulous professional with a formidable record,”48 and there is an extensive public record
concerning the topic that CIR 112 address, i.e., Plaintiffs’ relationship with President Putin.
Last, the Amended Complaint alleges that “Simpson and Fusion did not live up to their
own professed [professional] standards when they published the Dossier.” Am. Compl. ¶ 13.
Actual malice, however, cannot be established even where “the plaintiff [] offer[s] evidence of
‘highly unreasonable conduct constituting an extreme departure from the standards of
investigation and reporting ordinarily adhered to by responsible publishers.’” Jankovic, 822 F.3d
at 590 (quoting Harte-Hanks Commc’ns v. Connaughton, 491 U.S. 657, 664-65 (1989); Clyburn
v. News World Commc’ns, Inc., 903 F.2d 29, 33 (D.C. Cir. 2003)); see also Harte-Hanks
Commc’ns, 491 U.S. at 665) (motive in publishing story, including if motive was “to promote an
opponent’s candidacy,” cannot provide basis for finding of actual malice). “Rather, it is only
when a plaintiff offers evidence that ‘a defendant has reason to doubt the veracity of its source’
does ‘its utter failure to examine evidence within easy reach or to make obvious contacts in an
effort to confirm a story’ demonstrate reckless disregard.” Jankovic, 822 F.3d at 590 (quoting
McFarlane v. Sheridan Square Press, Inc., 91 F.3d 1501, 1509 (D.C. Cir. 1996)). The Amended
Complaint contains no such allegations.
Courts in this district have not hesitated to dismiss a complaint for failure to allege actual
malice. See, e.g., Deripaska, 2017 WL 4685297, at *6; Parisi v. Sinclair, 845 F. Supp. 2d 215,
218 (D.D.C. 2012) (dismissing complaint where it contained no factual allegations suggesting
actual malice); see also Zimmerman v. Al Jazeera Am., LLC, 246 F. Supp. 3d 257, 280 (D.D.C.
2017) (defamation action can “only survive Defendants’ motions to dismiss if it adequately

48

Nick Hopkins & Luke Harding, Donald Trump dossier: intelligence sources vouch for author’s credibility, THE
GUARDIAN (Jan. 12, 2017), https://www.theguardian.com/us-news/2017/jan/12/intelligence-sources-vouchcredibility-donald-trump-russia-dossier-author.

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alleges facts that support an inference that Defendants published the defamatory statements . . .
with actual malice”). This Court should similarly dispatch with the instant Complaint.
V.

PLAINTIFFS HAVE NOT PLEADED ANY ACTIONABLE PUBLICATION BY
DEFENDANTS TO A THIRD PARTY.
To plead a defamation claim, a plaintiff must allege that the “defendant published the

statement without privilege to a third party.” Jankovic, 494 F.3d at 1088. Plaintiffs have not
adequately alleged such a publication by Defendants. The Amended Complaint’s allegations of
publication are limited to: (1) purported briefings of journalists about the Dossier, Am. Compl.
¶ 6; (2) the provision of the Dossier “to [David] Kramer for redelivery to Senator [John]
McCain,” id. ¶ 7; (3) Defendants’ provision of the Dossier to their client, Perkins Coie; and (4)
BuzzFeed’s publication of the Dossier on the Internet, id. ¶ 8. These allegations do not allege a
non-privileged publication for which Defendants could be liable.
A.

“Briefing” of Journalists

Plaintiffs allege that “Defendants arranged for Steele to brief selected members” of the
media “about the information he was compiling on candidate Trump and his campaign.” Am.
Compl. ¶ 6. But there is no allegation that Steele, let alone Defendants, made any statements in
any purported briefing about Plaintiffs or CIR 112 or otherwise shared CIR 112 with any
journalists. The Dossier contained seventeen written reports. Id. ¶ 2. Given the number of
reports in the Dossier and the fact that reports other than CIR 112 addressed conduct about
Donald Trump and his campaign, the plausible inference is that any “briefing” on the Dossier
would have been on such conduct related to Trump and would not have included any mention of
Plaintiffs or the contents of CIR 112. See Iqbal, 556 U.S. at 678. Plaintiffs do not allege
anything to the contrary; indeed, they themselves allege that they have “nothing to do with” the
Dossier’s “purpose and intended subject matter.” Am. Compl. ¶ 2. Plaintiffs also do not allege

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that any of the journalists who attended a “briefing” published any statements about
Plaintiffs. They take pains to draft around this inconvenient point. Plaintiffs allege that “[m]any
[] media articles reported speculative accounts of the Dossier’s existence and contents.” Am.
Compl. ¶ 6. They allude to articles by Yahoo News and Mother Jones which “described some of
the content” or “quoted from [the] reports.” Id. But there is no allegation that any of these news
stories mentioned Plaintiffs or CIR 112.
All told, Plaintiffs have not alleged facts that make it “plausible” that Defendants
published any statements (let alone any potentially defamatory ones) about Plaintiffs to any
journalist. Put another way, Plaintiffs allege statements were made to journalists about the
Dossier; but they do not allege that any of those statements were about Plaintiffs.
B.

Delivery of the Dossier to Senator McCain

As to the provision of a copy of the Dossier to Mr. Kramer for redelivery to Senator
McCain, that communication is privileged as First Amendment petitioning activity and under the
common law privilege for communications made to a legislator. See Webster v. Sun Co., 731
F.2d 1, 5 (D.C. Cir. 1984) (“An individual must feel unrestrained by potential defamation
liability when addressing the legislature. Only then can the lawmaking process be fully informed
and operate with maximum effectiveness.”). To fall within the privilege, the communicator must
have: (1) made the statement with the purpose of “inform[ing] the legislative body on a subject
properly within its jurisdiction”; and (2) the statement had “some relation” to “legitimate
legislative business.” Id. This privilege protects unsolicited communications to a legislator,
even those made outside of an ongoing legislative proceeding. Id. at 3, 6.
The Dossier contained reports that were relevant to U.S. national security. See, e.g., Am.
Compl. ¶ 2. It is public knowledge, of which the Court can take judicial notice, that Senator

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McCain was, at all relevant times, the Chairman of the Armed Services Committee and a
member of the Senate Committee on Homeland Security and Governmental Affairs. See John
McCain, Committee Assignments, https://www.mccain.senate.gov/public/index.cfm/committeeassignments. The Amended Complaint alleges that the purpose of the meeting between Steele
and Kramer was to “show Kramer the content of the sixteen pre-election reports in the Dossier so
he could brief Senator McCain,” and that Defendants provided the reports in the Dossier to
Kramer “for redelivery” to Senator McCain in November 2016. Am. Compl. ¶ 7. The plausible
inference to be drawn from these alleged facts is that Defendants gave Senator McCain the
Dossier—through his agent, Kramer—because of Senator McCain’s legislative position and
because the content of the Dossier was relevant to Senator McCain’s legislative role.
Accordingly, the disclosure of the Dossier to Senator McCain, or to Kramer for redelivery to
Senator McCain, was absolutely privileged.
Additionally, the District of Columbia recognizes a qualified privilege where “there is
reasonable ground for making the alleged defamatory statement, either in the legitimate interest
of the person uttering it, or of the person to whom it is communicated.” Smith v. District of
Columbia, 399 A.2d 213, 220 (D.C. 1979) (Appendix A, adopting the superior court decision);
see also Restatement (Second) of Torts § 598 (1977) (stating that a publication is conditionally
privileged if the information involves an important public interest and that interest requires
communication to a public officer or private citizen who can take action). For the same reasons
discussed above, Senator McCain, as Chairman of the Armed Services Committee and a member
of the Committee on Homeland Security and Governmental Affairs, had a legitimate interest in
receiving the reports in the Dossier—which included information of legislative interest about
Russia’s alleged attempt to influence the 2016 presidential election as well as other information

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about the Kremlin’s activities and relationships. Statements protected by this qualified privilege
are “not actionable without a showing of excessive publication or express malice,” neither of
which is alleged here. Smith, 399 A.2d at 221 (citation omitted).
C.

Publication of CIR 112 to Fusion’s Client

The Amended Complaint also alleges that Defendants published the Dossier, including
CIR 112, to their client, Perkins Coie and that Perkins Coie provided it to their clients, the
Democratic National Committee and HFACC, Inc. (Hillary Clinton’s campaign organization).
Am. Compl. ¶ 16. These alleged “publications” are protected by the common interest privilege.
The common interest privilege protects statements “(1) made in good faith, (2) on a subject in
which the party communicating has an interest, or in reference to which he has or honestly
believes he has a duty (3) to a person who has such a corresponding interest or duty.” Payne v.
Clark, 25 A.3d 918, 925 (D.C. 2011); see also Restatement (Second) of Torts § 596 cmt.
Reporter’s Note (1977) (publication is conditionally privileged if “persons having a common
interest in a particular subject matter correctly or reasonably to believe that there is information
that another sharing the common interest is entitled to know”); Sack, Sack on Defamation
§ 9:2.3. Whether a statement is subject to the common interest privilege is a matter of law.
Payne, 25 A.3d at 925.
Fusion’s provision of the Dossier to their client manifestly falls within that privilege, as
does Perkins Coie’s alleged provision of the Dossier to its clients. Each of those parties has an
interest in the contents of the Dossier—Perkins Coie commissioned Fusion to do the research
that led to the Dossier to assist in Perkins Coie’s representation of its clients. Am. Compl. ¶¶ 1516. In the absence of express malice or malice in fact—neither of which are alleged, the
common interest privilege applies. Payne, 25 A.3d at 925.

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D.

BuzzFeed’s Publication of CIR 112

Lastly, Plaintiffs try to assign liability to Defendants for BuzzFeed’s decision to publish
CIR 112, along with the other reports in the Dossier, alleging in a conclusory fashion that
Defendants “intended, anticipated, or foresaw a high likelihood that allowing their clients . . . ,
third parties (like David Kramer and Senator McCain) and the media access to the Dossier’s
defamatory content would result in its republication by news media outlets, including . . .
BuzzFeed.” Am. Compl. ¶ 9. Plaintiffs’ effort to hold Defendants responsible for BuzzFeed’s
publication of CIR 112 fails for a number of reasons.
First, Plaintiffs do not allege—because they cannot—that Defendants authorized,
permitted or acquiesced in the publication of the Dossier by BuzzFeed. See Fashion Boutique of
Short Hills, Inc. v. Fendi USA, Inc., 314 F.3d 48, 59 (2d Cir. 2002) (“a plaintiff may not recover
damages from the original author for . . . slander arising from the republication of defamatory
statements by a third party absent a showing that the original author was responsible for or
ratified the republication”); Rubenstein v. Manhattan & Bronx Surface Operating Auth., No. CV96-902, 1997 WL 833456, at *6 (E.D.N.Y. Oct. 8, 1997) (“However, if the original publisher
‘had nothing to do with the decision’ to republish and ‘had no control over it,’ the ‘original
publisher cannot be held liable.”). To the contrary, as Plaintiffs well know, Defendants did not
give the Dossier to BuzzFeed and that, in fact, “Buzzfeed went to [Fusion GPS] and tried to get
the dossier from them and they refused to give it to Buzzfeed.” Ex. 2 (Disc. Hr’g Tr. 8-9,
Gubarev v. Buzzfeed, No. 0:17-cv-60426-UU (S.D. Fla. Sept. 28, 2017)); see also Corrected
Reply in Supp. of Non-Party Fusion GPS’s Mot. to Quash Third-Party Subpoena at 5, In re Third
Party Subpoena to Fusion GPS, No. 1:17-mc-02171-TSC (D.D.C. Oct. 27, 2017) (noting that
Fusion did not give the Dossier to BuzzFeed).

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Second, despite their conclusory allegation that Defendants “foresaw” that BuzzFeed
would republish the Dossier, Plaintiffs do not allege facts that support this allegation or make it
plausible. Plaintiffs do not allege any contact whatsoever between Defendants and BuzzFeed.
(To the contrary, Plaintiffs know that BuzzFeed requested the Dossier from Defendants and
Defendants refused to give it to them. See Ex. 2.) Plaintiffs do not allege that Defendants gave
copies of the reports in the Dossier, including CIR 112, to any journalist or other news media, let
alone one affiliated with BuzzFeed. Telling select journalists about the contents of other reports
in the Dossier in a background briefing does not make it foreseeable that an entirely different
publication would somehow obtain and publish CIR 112. And giving the Dossier to Senator
McCain for national security reasons does not make it foreseeable that a news organization
would somehow obtain the Dossier, much less publish it.
Plaintiffs’ argument amounts to an assertion that republication of allegedly defamatory
material by a media organization is attributable to the original author if that author ever allows
the material to be viewed by or possessed by any third party—no matter how confidentially or
under what circumstances the material was shown or given to the third party.

Plaintiffs’

argument would eviscerate the whole concept of privileged publications (including the
legislative and common interest privileges), making the original author strictly liable for any
subsequent republication, despite the fact that his original publication was privileged. Such a
result would be nonsensical and also is not the law.
VI.

ANY PUBLICATION OF CIR 112 IS PRIVILEGED UNDER THE DOCTRINE
OF NEUTRAL REPORTAGE.
CIR 112 reports statements by Russian government officials. It does no more than that.

It does not endorse those statements and it does not editorialize about them. As a result,
Defendants are protected by the neutral reportage doctrine. The neutral reportage doctrine

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protects instances where an organization “makes serious charges against a public figure,” as long
as those charges are reported accurately and disinterestedly. In re United Press Int’l, 106 B.R.
323, 328-29 (D.D.C. 1989) (holding that the doctrine should apply in the District of Columbia));
see also Barry v. Time, Inc., 584 F. Supp. 1110, 1123 (N.D. Cal. 1984) (neutral reportage
doctrine shields a “republisher who accurately and disinterestedly reports certain defamatory
statements made against public figures”). Plaintiffs are public figures, see supra Section III, and
CIR 112 simply reports statements of Russian government officials. The statements contained in
CIR 112 are what a “top level Russian government official commented” and what the “Russian
government figure reported.” Plaintiffs admit as much. Am. Compl. ¶ 3 (“Steele claims to have
used his own Russian sources . . . to compile the reports”). Neither Steele nor Defendants
endorse or provide editorial gloss on the reports. See Sunshine Sportswear & Elecs., Inc. v.
WSOC Television, Inc., 738 F. Supp. 1499, 1510 (D.S.C. 1989) (finding the neutral reportage
doctrine barred plaintiffs’ claim where news report did not “embellish or distort” the original
defamers’ statements). Accordingly, the neutral reportage doctrine should bar Plaintiffs’ claims.
See UPI, 106 B.R. at 323-24 (holding that neutral reportage doctrine applied where UPI reported
that an individual had been quoted in another newspaper saying that the plaintiff was the
“‘Godfather’ of Hawaii’s underworld crime”).

39

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CONCLUSION
The Amended Complaint should be dismissed for failure to state a claim.

Dated: January 29, 2018

Respectfully submitted,

/s/ William W. Taylor, III
William W. Taylor, III (D.C. Bar No. 84194)
Steven M. Salky (D.C. Bar No. 360175)
Rachel F. Cotton (D.C. Bar No. 997132)
ZUCKERMAN SPAEDER LLP
1800 M Street, NW, Suite 1000
Washington, D.C. 20036
Tel: [phone]
[e-mail]
[e-mail]
[e-mail]
Counsel for Defendants BEAN LLC, a/k/a
Fusion GPS and Glenn Simpson

40

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on January 29, 2018, the foregoing was filed with the Court’s
CM/ECF Service, and thereby provided to the following counsel of record:
Kim Hoyt Sperduto, Esquire
SPERDUTO THOMPSON PLC
1133 Twentieth Street, NW
Second Floor
Washington, D.C. 20036
Tel: [phone]
[e-mail]
Alan S. Lewis, Esquire
John J. Walsh, Esquire
CARTER LEDYARD & MILBURN LLP
2 Wall Street
New York, NY 10005
Tel: [phone]
[e-mail]
[e-mail]

/s/ Rachel F. Cotton
Rachel F. Cotton

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EXHIBIT 1

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Case 1:17-cv-02041-RJL Document 20-3 Filed 01/29/18 Page 1 of 5

EXHIBIT 2

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1

1

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 17-60426-CIVIL-UNGARO

2
3
4
5

ALEKSEY GUBAREV,
XBT HOLDINGS, S.A., and
WEBZILLA, INC.,

6
7
8

Miami, Florida

Plaintiffs,
vs.

September 28, 2017
10:00 a.m.

BUZZFEED, INC., and
BEN SMITH,

9
10

Defendants.
Pages 1 to 103
______________________________________________________________

11
12
13
14

DISCOVERY HEARING
BEFORE THE HONORABLE JOHN J. O'SULLIVAN,
UNITED STATES MAGISTRATE JUDGE
(TRANSCRIBED FROM THE DIGITAL AUDIO RECORDING)
APPEARANCES:

15
FOR THE PLAINTIFFS:
16
17

EVAN FRAY-WITZER, ESQ.
CIAMPA, FRAY-WITZER, LLP
20 Park Plaza
Suite 505
Boston, Massachusetts 02116

18
19
20
21

VALENTIN GURVITZ, ESQ.
BOSTON LAW GROUP, PC
825 Beacon Street
Suite 20
Newton Centre, Massachusetts 02459

22
23
24
25

BRADY COBB, ESQ.
TRIPP SCOTT
110 Southeast Sixth Street
Fifteenth Floor
Fort Lauderdale, Florida 33302

Case 1:17-cv-02041-RJL Document 20-3 Filed 01/29/18 Page 3 of 5
2

1

APPEARANCES, CONT'D:

2

FOR THE DEFENDANTS:

3
4

KATHERINE M. BOLGER, ESQ.
DAVIS WRIGHT TREMAINE, LLC
1251 Avenue of the Americas
21st Floor
New York, New York 10020

5
NATHAN SIEGEL, ESQ.
DAVIS WRIGHT TREMAINE, LLC
1919 Pennsylvania Avenue, NW
Suite 800
Washington, DC 20006

6
7
8
9

JARED M. LOPEZ, ESQ.
BLACK, SREBNICK, KORNSPAN & STUMPF
201 South Biscayne Boulevard
Suite 1300
Miami, Florida 33131

10
11
12
TRANSCRIBED BY:
13
14
15
16
17
18
19
20
21
22
23
24
25

LISA EDWARDS, RDR, CRR
[e-mail]
[phone]

Case 1:17-cv-02041-RJL Document 20-3 Filed 01/29/18 Page 4 of 5
8

1
2
3
4

want to do it, more power to you?
All of these things are going to go to the questions of
negligence and actual malice.
Were they given the dossier from a competitor of

5

Webzilla who saw an opportunity to hurt the company?

Again,

6

the questions as to who gave them the dossier, what they were

7

told when they were given the dossier, are clearly going to be

8

relevant, even if it's just to those questions.

9

just to those questions.

But it's not

The Defendants have asserted a fair

10

report privilege defense.

11

defense applies only to reports of information received from

12

government officials or contained in official government

13

documents.

14

Well, the fair report privilege

Did they receive the report from a government official?

15

There's no way we can know that unless we know who they

16

received the report from.

17

We do know --

18

THE COURT:

19

MR. FRAY-WITZER:

20

THE COURT:

21

MR. FRAY-WITZER:

22

We do know from Fusion GPS that the report didn't --

23

THE COURT:

24

MR. FRAY-WITZER:

25

It's not an official document.

Right?

It's not an official government --

Is [inaudible] admitting that?
Yeah.

What is that?

Fusion?

Fusion GPS -- and I'm sorry.

should have started with a little bit of the background.

I

Case 1:17-cv-02041-RJL Document 20-3 Filed 01/29/18 Page 5 of 5
9

1

But Fusion GPS is the opposition research firm in

2

Washington, DC, that was originally hired by someone to create

3

the Trump dossier.

4

Christopher Steele of London, the former MI6 agent, who

5

gathered the information.

6

They in turn turned to Orbis Business and

We have not yet been able to depose Fusion.

7

making that attempt.

8

that they have told us is Buzzfeed didn't get the dossier from

9

them.

10

Fusion's fighting it.

We're

Buzzfeed went to them and tried to get the dossier from

them and they refused to give it to Buzzfeed.

11

THE COURT:

12

MR. FRAY-WITZER:

13

But the one thing

The folks at Fusion GPS told you that?
That's what they -- that's what they

claim, yes, your Honor.

14

THE COURT:

Okay.

They just told you that informally

15

or you deposed them or they said that in some kind of filing

16

somewhere?

17

MR. FRAY-WITZER:

In response to our subpoenas and in

18

discussions about narrowing the categories, they've told it to

19

us.

20

haven't been able to depose them because they have moved to

21

quash.

It's not -- it's not in anything official yet and we

22

THE COURT:

And just to go back a little bit so I

23

understand, what do you contend that they did wrong as to your

24

client?

25

MR. FRAY-WITZER:

Okay.

Your Honor, on January 10th,

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ADDENDUM

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Document 20-4 Filed to riches

Mikhail Fridman

Profile: Mikhail Fridman — from rugs to riches
Alfa chairman walks a tightrope as the oligarch who has escaped western sanctions

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MARCH 2, 2015 John Aglionby

Mikhail Fridman, one of Russia’s richest oligarchs and chairman of Alfa Group, has so far walked
largely successfully along a tightrope.
On the one hand, he has preserved his wealth by not falling out with Russian president Vladimir
Putin. On the other, he has not been a target of sanctions imposed on Moscow over Russia’s
intervention in Ukraine.
Born in 1964 in Lviv, western Ukraine, Mr Fridman began his career by reselling rugs and theatre
tickets before founding Alfa-Eco in 1989.
This developed into the Alfa Group, which has interests ranging from banking to energy and
telecoms. It became one of Russia’s largest privately owned investment groups after securing
$14bn in 2013 when Rosneft, the Russian state-controlled energy group, bought TNK-BP, an oil
explorer in which Alfa had a big stake.
The telecoms side of Mr Fridman’s empire, Altimo, was launched in 2005, and is the largest
shareholder in VimpelCom, one of Russia’s largest mobile phone operators. It is also a shareholder
in Turkcell, the leading Turkish mobile operator.
Altimo’s history has been marked by repeated and often acrimonious legal disputes with its
partners. In a ruling on a 2008 motion filed by Telenor, the Norwegian telecoms group that is a
shareholder in VimpelCom, an American judge described Altimo as having an “extensive and
brazen history of collusive and vexatious litigation”.
Indeed, battles with partners have been a feature of Mr Fridman’s business dealings. In 2011, Alfa
scuppered BP’s attempt to develop the Arctic and repeatedly had a row with the UK oil major when
the two were fighting for control of TNK-BP.
Unlike many other oligarchs, Mr Fridman has largely stayed out of Russian politics and sensitive
sectors such as the media — and this may have helped him to avoid the US and EU sanctions that
have targeted Mr Putin’s inner circle since the Ukraine crisis erupted.
When the sanctions were imposed last year, government officials in Moscow mocked the west for
being afraid to hurt its own financial interests because Mr Fridman was among several Kremlinfriendly tycoons left off the list of targeted individuals.
But Mr Fridman has not escaped scot-free — as demonstrated by UK energy secretary Ed Davey’s
move to stop the oligarch’s LetterOne group buying the British assets of Germany’s RWE Dea.

Fridman attacks North Sea deal
threat

The creation of L1 Energy, LetterOne’s energy-

Mikhail Fridman, the Russian

new business ventures.

billionaire, has told Britain’s
energy secretary that the UK
government’s threat to block a
€5bn deal by his investment
vehicle to buy North Sea

focused investment vehicle, is the latest indication
that Mr Fridman is increasingly looking overseas for

Outside business, Mr Fridman has taken a leading
role in efforts to revive Russia’s Jewish community,
co-founding the Russian Jewish Congress In 1996.
He subsequently helped establish the Genesis
Philanthropy Group, which seeks to develop Jewish

gasfields is “not rational”.

identity among Russian-speaking Jews around the

Continue reading

world.

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Document 20-4 Filed to riches

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Not all Russian billionaires are Putin’s pals
By Leonid Bershidsky
Thursday March 5, 2015
7:48 PM GMT+8

Global views from
columnists from
international financial
wire service Bloomberg.
MARCH 5 — Perhaps it should come as no surprise that a Russian billionaire seeking to invest
capital beyond President Vladimir Putin’s reach and against his public advice has run into
trouble. Less understandable is that the problems are being created by the British government,
not Putin.
The UK is trying to block Mikhail Fridman’s acquisition of Dea, the oil and gas subsidiary of
German utility RWE, through his Luxembourg vehicle LetterOne. Although Germany has
approved the acquisition, Dea extracts oil and gas from fields in British-controlled areas of the
North Sea. UK energy minister Ed Davey has “raised concerns with the respective companies
about the effect that possible future sanctions imposed on LetterOne may have on the continued
operation of these twelve fields and the serious health and safety and environmental risks that
may result.”
In other words, Davey doesn’t like the deal because of possible future sanctions against Fridman.
It’s hard to imagine what kind of argument Davey could make about this in a court of law
(Fridman is litigious). The bigger problem is that the UK government is being patently unfair and
shooting itself in the foot to do so.
The ideology behind the current Ukraine-related sanctions imposed on Russian individuals and
entities by the US and the European Union is that they impose a cost on Putin’s regime for
continuing to prey on a country that resists his meddling. Within this logic, it makes sense to
impose restrictions on companies that belong to Putin’s close friends and the Russian state.
Sanctioning LetterOne would not impose any cost on the Kremlin.
Fridman, who was born in Ukraine and lavishly funds Jewish causes there, has a remarkable
talent for survival. He started out in business in the late 1980s, when Soviet liberalisation
allowed him to open a window-washing firm. Under President Boris Yeltsin, Fridman built
Russia’s biggest private bank, Alfa Bank. Unlike any of the competing financial institutions set
up by his fellow oligarchs, Alfa is still around, with a big, sophisticated retail operation and
US$40 billion (RM146 billion) in assets.

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Fridman watched Putin’s cronies get rich on government contracts and giant state corporations
rise to dominate previously fragmented markets, and he kept a respectful distance. His business
empire, however, was too big for him to avoid a clash with the new order.
Fridman was a partner in TNK BP, a 50-50 joint venture between a consortium of Russian
investors and BP, the UK-based oil company. The union was blessed by former UK Prime
Minister Tony Blair and Putin in 2003. In his book, “Beyond Business,” then-chief executive of
BP Lord John Browne wrote:
I tried to push for 51 per cent of TNK but Putin and Fridman both told me we could not have it. I
knew if we had 49 per cent we would have no power whatsoever. So in the end the only option
was to go for a 50:50 deal. Putin said: “It’s up to you. An equal split never works.” Over the
years he reminded me of this statement again and again.
He had reason to do so: The joint venture was constantly at risk of falling apart because of
squabbling between the British and Russian shareholders, even as TNK BP expanded and made
billions in profit.
Then Igor Sechin, Putin’s close friend, took an interest in the unstable situation and arranged to
buy out BP’s share for the state company Rosneft, which Sechin runs. “We never wanted to stay
one-on-one with Sechin in TNK BP,” a Russian consortium member told the Russian edition of
Forbes at the time. Fridman and partners agreed to sell their share to Rosneft, too.
This wasn’t something Fridman wanted to do, but he ended up with US$14 billion in proceeds
from the mammoth US$55 billion deal — and ultimately emerged better from it than BP. The
UK company ended up with 20 per cent of Rosneft, a shrinking asset now that the Russian stock
market is toxic to most serious investors. Fridman, however, ignored government calls to take
some of his payout in Rosneft shares. That made it necessary for the state behemoth to borrow
heavily to pay him.
He and his partners received the money offshore, which worried Putin. The Russian president
told a press conference in December 2012:
I would very much like them to invest these funds or a large part of them in the Russian
economy. But we must create good conditions for that. On the whole, I know my colleagues
from the government and some of our companies are in touch with the participants in that deal
— I hope they decide in favour of investing in the Russian economy.
This polite expression of Putin’s “hope” wasn’t easily ignored. Still, Fridman was stubborn. He
set up LetterOne and started looking for non-Russian assets to set up a new energy company.
RWE, overburdened with debt and eager to get out of traditional power generation, which has
been making less and less money, couldn’t resist Fridman’s offer: He outbid the nearest
competitor by almost 50 per cent, agreeing to assume a 600 million euro chunk of RWE’s debt.
Germany approved the Dea deal last year, just a month after Russian-backed separatists shot
down a passenger airliner over eastern Ukraine. German officials were mature enough to

Case 1:17-cv-02041-RJL Document 20-4 Filed 01/29/18 Page 8 of 42

understand that Fridman was the opposite of a Putin proxy and that RWE could not have done
better than to sell Dea to him.
Knowing this backstory, it’s hard to understand what Davey’s problem could be. Even Lord
Browne, who has had a stormy relationship with Fridman, is backing him now: He has accepted
an appointment as LetterOne’s executive chairman. Browne, of all people, knows Fridman is a
gifted entrepreneur and that his company is not a Kremlin tentacle.
It’s also hard to see what the UK could gain by discriminating against Fridman solely on the
basis of his Russian passport. Other companies, including BP, are divesting their North Sea
assets. Would the UK prefer Fridman to pick up some of that slack or to invest his cash in
Russia, as Putin has asked, thereby aiding a regime the West wants to bleed economically
through sanctions? Blocking Fridman’s investment can only undermine the sanctions strategy,
which makes no sense.
The UK government has enough experience with wealthy Russians, many of whom live and do
business in London, to understand they are not all pillars of the Putin regime. It should leave
Fridman alone: He’s investing in Western Europe because he sees the same Russian risks that
Western nations have seen since last year. — Bloomberg View
* This is the personal opinion of the columnist.

https://www.bloomberg.com/view/articles/2015-03-05/not-all-russian-billionaires-are-putincronies

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At Home with the FT House & Home

Petr Aven: the Russian oligarch with an eye for art, not yachts
He grew up in a communal flat in Moscow. Today he is the billionaire head of Alfa-Bank with a mansion in Surrey

Petr Aven in the garden of his Surrey home with Henry Moore’s 'Reclining Figure' © Rick Pushinsky

JULY 12, 2017 Andrew Jack

9 comments

Petr Aven looks a little uncomfortable framed by the gargantuan scale of his Surrey mansion. He is
standing on the front steps of the three-storey pillared façade, approached up a long winding path
from the gatehouse through the surrounding gardens.
“I would not have bought a house this big,” he blurts out quickly, as if apologising. “I was raised in
a communal apartment in Moscow with eight families. Each had just one room, with a shared
kitchen and bathroom.”
Having trained as an economist in the 1970s, Aven was picked to join the inner circle of politicians
around Yegor Gaidar in 1991 to run Boris Yeltsin’s first post-Soviet cabinet of pro-market
reformers. He helped shape a radical and painful policy shake-up in the turbulent Russia of the
early 1990s.
In alliance with his business partner Mikhail Fridman in the following years, he went on to build
Alfa Group, the conglomerate that embraced banking, oil and retail. He emerged as one of the
country’s influential business “oligarchs” and his wealth today is estimated by Forbes to be $4.5bn.

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Yet for a forthright power broker and commercial magnate who thrived in the feral capitalism of
Russia and survived multiple financial and political crises, he seems accepting of the practices and
tastes of his adopted part-time home in the UK. When he and his then wife bought Ingliston House
near Virginia Water in 2004 their aim was to find somewhere comfortable so that their children
could attend English schools nearby. They acquired a then empty plot, which came with plans
already drawn up.

Sitting room © Rick Pushinsky

The neo-Palladian, pillared and limestone-faced design resembles other mansions in the gated
community adjacent to Wentworth golf club. He left the design almost unchanged — albeit adding
extensive security — since it had already been approved by the local authority. “You don’t easily
challenge English planning laws,” says Aven with a grin.
Inside, he took the same hands-off approach to the proposed “Strawberry Hill gothic” decor by
Nicky Haslam, complete with brightly coloured wallpaper and plumped-up sofas. “We didn’t want
to stop him. The paintings are so strong that they still work,” he says, gesturing to the walls
adorned with his passion: art.

‘Bavarian Mountains with Village’ by Wassily Kandinsky © Rick Pushinsky

Works by Larionov, Goncharova and Kandinsky are among the canvasses on display, part of his
extraordinary collection of late 19th- and early 20th-century Russian art built up in parallel with
his business career over the past quarter of a century.
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“It comes from childhood. My father [a computer science professor] didn’t buy art, but I wanted
paintings around, like his friends that we used to visit,” he says. “I didn’t just want to buy art but to
create a collection from scratch. My main satisfaction is to put things in order. I like arranging
books on shelves. It gives me enormous pleasure.”

Dining room © Rick Pushinsky

His choice was shaped by opportunity. “All the major work of Soviet art is in museums, but you
could find pre-revolutionary art,” he says. His first purchase was in 1993: a still life by Pavel
Kuznetsov from the 1920s, which cost just $5,000.
Ever since, he has been tracking down works, mostly from the pre-Soviet era, in auctions, from
private collections and sometimes directly from artists’ descendants or others who have inherited
work. “I never bought a plane or a yacht. All my money goes into art.”

Porcelain cup and saucer © Rick Pushinsky

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It is only late morning, but he offers champagne and wine, which a waiter brings into the circular
entrance hall on a tray along with small snacks including smoked salmon served on blinis.
Down one of the two staircases, which wraps around the inner wall to bring visitors into a
basement level, Aven has a collection of lacquered boxes. Yet he is most proud of the cupboards
that line the walls: Soviet porcelain from 1917-41, made in St Petersburg in the former Imperial
factory renamed Lomonosov. “It was very cheap to collect when I started,” he says, stating that the
collection fascinates him because he sees it as a one-off and less derivative than paintings of the
period. “Russian painting was inspired by Cézanne and Matisse, but Russian porcelain was
original.”

Detail of ceramic plate © Rick Pushinsky

Upstairs in his bathroom, he shows off a series of more intimate sketches of female nudes by
Vladimir Lebedev from the 1930s, which he sees as indicative of an unexpected tolerance by the
Soviet authorities towards private life and its portrayal in art at the time.
His office, up a further flight of stairs beneath the roof rafters, is brighter, more relaxed and
modern, with catalogues but fewer works of art. Photographs on one table show him with human
rights activist Natan Sharansky, hunting bears in remote Kamchatka with his business partner
German Khan, and with Vladimir Putin.
He is discreet about his own relations with the Russian president and veers the conversation away
from politics. All he will say is that “Alfa had absolutely no connection with Trump”. There were
allegations in a purported intelligence document published by BuzzFeed suggesting such a
connection, an inference that is now the subject of legal action.

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Entrance hall © Rick Pushinsky

He is also circumspect about Boris Berezovsky, the maverick businessman and politician who was a
longstanding acquaintance. Berezovsky fled Russia in 2000 after falling out with Putin and settled
nearby in Virginia Water until his mysterious death in 2013. Aven says he long ago broke off
contact from this “complex figure”, but is finishing a book on “the time of Berezovsky” in the 1990s.
In reality Aven’s office is his phone, from which he is inseparable. It rings repeatedly and buzzes
still more often with texts as he moves between his house in Surrey and two others in Russia — in
central Moscow and in the nearby town of Barvikha — as well as in Ukraine, where he manages
Alfa-Bank’s growing operations.
Outside his Surrey house, the 8.5 acres of green lawns, tended by several gardeners and framed by
mauve rhododendrons, provide plenty of space for large open-air sculptures. Opposite the entrance
is Lynn Chadwick’s “Sitting Couple”, a nod to Aven and his late wife, who spent most of her time in
the UK and oversaw the garden and the couple’s art collections.

‘Sitting Couple’ by Lynn Chadwick © Rick Pushinsky

At the end of a short path to the right of the entrance courtyard is a giant Soviet border guard
sculpted by Aven’s friend Grisha Bruskin. To the left is Louise Bourgeois’s mother and daughter
spiders, which he says he used to tease his children with at night.
Overlooking the gatehouse is a giant bear reared up on its hind legs. “Everyone thinks it’s Russian,
but it’s French, by [François-Xavier] Lalanne,” he says.

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On one flank of the house, Henry Moore’s “Reclining Figure”, bought for £19m, rests on a plinth. “I
like his passion and the very unusual perception of space, like the Expressionists,” he says.

Spider sculpture by Louise Bourgeois © Rick Pushinsky

To the rear is a specially commissioned work by Antony Gormley, a hunched up abstract human
figure made from angular pieces of metal that could symbolise DNA. Aven got to know the artist
through his work as a trustee of the Royal Academy’s development trust. Thanks to this role and
others he now hosts patrons and collectors to show off his art.
For a number of years, he was reluctant to loan out any of his own works at a time of insecurity
over property rights and difficulties in obtaining insurance and security guarantees.
Now he has greater confidence and enthusiasm for sharing: his works have been lent to the Jewish
Museum in Moscow, the Tate in London, the Museum of Modern Art in New York and recently the
Royal Academy for its Russian art exhibition this year. Others will soon go to New York and Tel
Aviv.

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Border guard sculpture by Grisha Bruskin © Rick Pushinsky

“I am lending more and more,” he says. “Russian art deserves it.” He hopes to be able to persuade
the Victoria and Albert Museum to put on a show based around his porcelain collection. In the
future, he dreams of a private museum to house his works.
Yet he believes they would be overshadowed by other state collections if it were in Moscow, and in
London he questions whether there would be sufficient interest. Instead, he is considering Riga, for
which he retains an affinity because of his Latvian grandfather.
Russia has changed radically in recent years, and Aven’s own personal life has shifted following his
wife’s death in 2015 and his subsequent remarriage, causing fresh reflection on his cultural
interests.
“If I was starting again, I would have done something different,” he says. “This was an all-Russian
collection. Step by step it’s becoming international. I’m tempted by the connections between 20thcentury Italian, German and Russian art, melded by the forces of totalitarianism.”

Favourite thing

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© Rick Pushinsky

Aven chooses “Les maisonnettes rouges” (1922) by Marc Chagall. “I bought this in an auction at
Sotheby’s in London in 2015 [the recorded price is £3.3m],” he says. “It turned out I was bidding
unknowingly against my business partner German Khan who had also started to collect works by
Russian painters of Jewish origin. The painting is simultaneously about Russia, the Jewish attitude
towards life — that of eternal movement — and of course it is also of the highest artistic quality.”
Andrew Jack is the FT’s head of curated content
Photographs: Rick Pushinsky
Copyright The Financial Times Limited 2017. All rights reserved. You may share using our article tools. Please don't copy articles
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Case 1:17-cv-02041-RJL Document 20-4 hunt pastures new

AAR Consortium

Cash-laden oligarchs hunt pastures new

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APRIL 5, 2013 Courtney Weaver in Moscow

Hours after Rosneft finalised a deal to buy out the oligarch founders of rival oil producer TNK-BP
last month, Mikhail Fridman and German Khan donned white robes, safari hats and sunglasses
and began a three-day trek in the Israeli desert.
Flanked by a dozen other tycoons, two camels and a film crew from a Russian television channel,
the pugnacious Mr Fridman was shown taking naps in the shade, learning to make flatbread from
scratch, and belting out Ukrainian folk songs for his travel mates across the camp fire.
Why Mr Fridman decided to have the film crew accompany him on this particular pilgrimage, his
third such trip, will remain a mystery. Ten minutes of footage was later aired on Russia’s
opposition-leaning station, TV Rain. But one thing from the tape is clear: Mr Fridman was in high
spirits.
“Some people after they do the deal of their lifetime, they go to the banya and call some girls, some
guys go into the desert and sing Ukrainian folk songs,” says Steven Dashevsky, founder of
Dashevsky & Partners, a Moscow investment company.
“The guy is in a good mood and it’s very easy to understand why he’s in a good mood.”
After selling their half of TNK-BP to Rosneft last month, Mr Fridman, Mr Khan and their two
partners Viktor Vekselberg and Len Blavatnik, are $28bn richer.
Now they are embarking on new phases of their careers, nearly a decade after they joined forces
with BP to create one of Russia’s largest private oil majors.
While some market participants have questioned whether AAR – the four oligarchs’ consortium –
was able to keep the entire $28bn, people close to the consortium insist that the oligarchs are able
to.
For two of the tycoons the deal marks the end of an era. Mr Vekselberg and Mr Blavatnik had been
anxious to end their involvement in TNK-BP months before the deal with Rosneft was sealed,
people close to the billionaires say.
Mr Blavatnik, who lives in London, has moved on from oil and gas to the music business, a likely
investment target for some of the $7bn he has received from the sale.
Mr Vekselberg, meanwhile, has switched his main

Some people after they do
the deal of their lifetime,
they go to the banya and call

focus to the power sector. He declared on Russian
television on Thursday that up to $1.5bn of the $7bn
he has received from the deal will go to his Integrated
Energy Systems, Russia’s largest power supply and

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Case 1:17-cv-02041-RJL Document 20-4 hunt pastures new
gas distribution company, which has both high debts
some girls, some guys go
and a significant investment programme.
into the desert and sing
Ukrainian folk songs
More uncertainty surrounds the next steps of Mr
Steven Dashevsky, founder of Moscow
investment company Dashevsky & Partners

Fridman and Mr Khan, who now have a vast choice of
countries and sectors in which they could deploy their
cash.

Alfa Group, their holding company, has already announced that it is setting up a “major, new
international investment business” to focus on oil and gas, and a separate business that would
expand its telecoms interests.
“On Alfa’s side there is an openness to staying in the oil and gas sector,” said one senior western
banker close to the tycoons. Future deals, he added, are “more likely to be international than
domestic”.
Mr Khan and Stan Polovets, chief executive of AAR, have held exploratory meetings with 25 major
investment banks, private equity groups, and oil and gas consultancies, as they explore which
investments to pursue.
They have also met former BP chief executives Lord Browne and Tony Hayward, with whom they
worked during the early days of TNK-BP. Lord Browne is now a partner at Riverstone, the energyfocused private equity group, while Mr Hayward is at London-listed Genel Energy, the Kurdistan
oil producer.
Mr Polovets said it was likely to be six to 12 months before the investors chose which options to
pursue.
“We’re not in any hurry to make investments,” he told the Financial Times, declining to comment
on whether Alfa saw specific opportunities with Mr Hayward or Lord Browne.
He added that Alfa was likely to pursue a number of deals alongside other private equity groups.
“We don’t expect to create another TNK-BP,” he said. “That was a unique opportunity at a
particular point in time.”
A former TNK-BP associate said that the planned new oil and gas venture fitted with Mr Khan’s
previous work at TNK-BP, where he was the one largely running the company.
“Even when Fridman was there [as chief executive] Khan was the guy making all the decisions. He
was good at it,” the person said.
“Say what you want about the ethical things but he’s good at squeezing efficiency out of [Russian
oil and gas companies],” many of which remain highly ineffective, he added.
Outside oil and gas, Alfa is active in the telecoms sector where it owns nearly 50 per cent of
operator VimpelCom and about 13 per cent of Turkcell where it is locked in conflict with Turkey’s
Cukurova.
At the end of March, Alfa’s telecoms arm offered to buy out investors in Algerian telecoms group
Orascom, a VimpelCom subsidiary, at an 8 per cent premium.
More recently, Alfa has sought to outbid Russian state-owned lender VTB for the Russian unit of
Sweden’s Tele2 with counterbids through two of its subsidiaries. Both Tele2 and VTB insist their
deal is closed.
A person close to Alfa said that the company had weighed bids for other targets such as EE, the UK
mobile phone operator, and MTN, the South African telecoms group.
How committed Alfa will remain to Russia remains to be seen. In a statement in December, AAR
promised to reinvest most of the proceeds from the TNK-BP sale back into the Russian economy,
following up on a public request by Vladimir Putin who said that he “hoped” the cash would stay in
Russia.
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While some analysts wondered whether Mr Fridman would want to reinvest in Russia after being
pushed out of TNK-BP by state-owned Rosneft, others called the deal and the new opportunities it
offers a win for AAR.
“They have all the cash,” says the senior western banker.
“They should be psyched.”

Mikhail Fridman
One of Russia’s seven most powerful oligarchs in the 1990s, Mikhail Fridman is
one of only two, along with Norilsk Nickel’s Vladimir Potanin, who managed to
stay at the top. Ukraine-born Mr Fridman, Russia’s second-richest man with a
fortune of $16.5bn, according to Forbes, started out reselling rugs and theatre
tickets before co-founding the consortium then-known as Alfa-Eco in 1989.
Over the years it has shifted from a small business selling computers and rugs
to become Alfa Group, with assets spanning banking, oil and gas, retail and
telecoms, including a stake in Turkish mobile operator Turkcell. The litigious
48-year-old has battled with partners ranging from the UK’s BP to Sweden’s
Telenor. In 2011 he scuppered BP’s attempt to develop the Arctic with stateowned Rosneft. While the feud ultimately ended with Rosneft buying both BP
and AAR out of TNK-BP,
Mr Fridman is no worse for the wear. AAR was bought out for $28bn, with Alfa
pocketing $14bn.

German Khan
A classmate of Mr Fridman at the Moscow Institute of Steel and Alloys, German
Khan is the quieter of the two, preferring to let his steely reputation speak for
itself. Mr Khan, 50, is equally known for his role at TNK-BP as he is for a
mention in US diplomatic cables made public by WikiLeaks. In these, American
diplomats described his Russian hunting lodge as being like “a Four Seasons in
the middle of nowhere” and alleged that Mr Khan watched the film The
Godfather every few months, considering it “a manual for life”. An avid hunter,
the Kiev-born businessman is worth $10.5bn, according to Forbes. A cofounding partner with Mr Fridman of Alfa Group, with interests in sectors from
telecoms to Alfa-Bank, one of the largest privately owned lenders in Russia, Mr
Khan these days is a philanthropist. His pet projects include the Genesis
Philanthropy Group, which awards $1m every year to a scientist that
exemplifies Jewish values.

Viktor Vekselberg
Possibly the closest of the four AAR tycoons to the Kremlin, Viktor Vekselberg
has segued from natural resources to utilities, technology and art. The 55-yearhttps://www.ft.com/content/25bf411a-9e01-11e2-bea1-00144feabdc0

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old tycoon, worth
an estimated $15.1bn, was born in a small city in western Ukraine, and first
earned his fortune selling scrap metal. Together with his schoolmate Len
Blavatnik, he formed the Siberian Ural’s Aluminium Group (Sual) in the mid
1990s, which they eventually merged with Oleg Deripaska’s own aluminium
group to form Rusal. Once chairman of Rusal, Mr Vekselberg quit last year after
a row with Mr Deripaska. And while he still owns a small minority stake in the
group, he has showed greater interest in the utilities sector, weighing potential
deals through his Integrated Energy Systems, Russia’s largest power supply and
gas distribution company. He is president of Skolkovo, prime minister Dmitry
Medvedev’s techo-park project modelled on Silicon Valley. An avid art collector,
he has repurchased a rare collection of Fabergé eggs and donated them back to
the Russian state.

Len Blavatnik
Born outside Moscow, Len Blavatnik emigrated with his university professor
parents to the US in the late 1970s and went on to attend graduate school at
Columbia University and Harvard Business School. An American citizen since
1984, Mr Blavatnik returned to Russia around the fall of the Soviet Union, as
the country’s natural resource assets suddenly became available for
privatisation. After co-founding Sual with Mr Vekselberg, then TNK with his
three partners, Mr Blavatnik began to focus on investments in the US,
becoming one of the titans of the American music industry. Mr Blavatnik, 55, a
Leonard Cohen lover, paid $3.3bn for Warner Music in 2011, and has won an
auction for Parlophone, the former EMI label. In March, he invested in an upand-coming music subscription service being developed by Jimmy Iovine and
Dr Dre’s Beats Electronics. His net worth is valued at $16bn by Forbes
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11/21/2017

TN K-BP Partner Relishes Conflict- WSJ
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DOW JONES, A NEWS CORP COMPANY v

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BUSINESS

TNK-BP Russian Partner Relishes
Conflict
Taking Lessons from 'The Godfather,' Russian Billionaire Expresses Pride in 'Tough Relations
With Our Partners'
By Gregory L. White
November 14, 2011
MOSCOW—For much of its eight-year history, Russian oil company TNK-BP Ltd. has
seen its two shareholders at odds. BP PLC and a group of Soviet-born billionaires known
as AAR have done battle in courtrooms and boardrooms from Siberia to the Caribbean.

AAR's German Kheui says he end his prince 'believe In the airuchire of TNK-EIP, despite periodic dbsputes. DENIS
ABRA1.40VNEDOMOS71

That's a good thing, says German Khan, an AAR principal who insiders say essentially
has run '1'NR-BP since the joint venture's BP-backed chief executive fled Russia during a
rowbetween the shareholders three years ago.
"I'm of the view that shareholder conflicts are good for companies," Mr. Khan says in a
rare interview at TNK-BP's Moscow headquarters_ "I've seen many conflict situations
where managers started working better than in ordinary conditions."
Mr. Khan, 50 years old, has seen plenty of tension in his business career. He is one of the
three founding shareholders of the Alfa Group, which grew from a window-washing
cooperative in the waning days of the Soviet Union into a conglomerate withholdings in
an array of sectors, including from oil, banking, retail and telecommunications.
Legendary for its often-aggressive tactics with partners, competitors and debtors, Alfa
has been criticized for exemplifying Russia's bare-knuckle business environment.
But Mr. Khan—a slight, soft-spoken man who
took up boxing as a child in Kiev, Ukraine, and
as an adult has been said to carry a chrome-plated pistol -under his sport coat—makes no
apologies for Alfa's style. The group's holdings are nowvalued at more than $25 billion.
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"We try to set rather clear and tough relations with our partners and defend our

rights in the legal situations that arise," he says.
TNK-BP often has been the battlefield for such relations. Alfa is the first 'A' and the
dominant partner in AAR, which also includes Len Blavatnik's Access Industries
and Viktor Vekselberg's Renova Group.
Early this year, AAR asked a London court to block a $16 billion alliance that BP
had negotiated with 0A0 Rosneft, a Russian state-controlled oil company. AAR said
the deal would have violated exclusivity provisions in joint-venture agreement with
BP. The court agreed, and BP was forced to scuttle the Rosneft deal. BP rival Exxon
Mobil Corp. XOM 0.60% ♦ ultimately made the deal with Rosneft instead.
Arbitration proceedings are under way with AAR. They could lead to TNK-BP suing the
British giant for what AAR says are billions of dollars in damages from the failed deal. BP
rejects that claim as groundless. Mr. Khan declines to comment on that dispute.
In BP's previous run-in with AAR, Bob Dudley, who then was chief executive of TNK-BP
and now runs BP, had to leave Russia in 2008 amid a rising wave of pressure on
foreign executives from regulators and courts in Russia. People close to BP blamed the
problems on AAR, in particular, Mr. Khan. Mr. Dudley at the time said he held
meetings on the balcony of his downtown Moscow office to avoid eavesdropping.
"It was a nice balcony," Mr. Khan recalls, saying he wasn't aware of eavesdropping. AAR
has denied a role in pressuring BP. After Mr. Dudley left Russia, BP and AAR reached a
truce in which the British giant gave up much of its direct influence inside the company.
"There's nothing personal here, it's just business," Mr. Khan says.
A BP representative says "occasional shareholder disagreements have not
stopped [TNK-BP's] growth, and as shareholders we are very happy with the
company's performance." Mr. Dudley wasn't available for comment.
At the height of the 2008 conflict, Mr. Khan was featured in a secret U.S. diplomatic
cable, in which a British colleague painted an unflattering picture of him, even
noting Mr. Khan's affection for the movie "The Godfather."
"I should have it framed and hung on my office wall," Mr. Khan jokes about the
cable. "By the way, it's a very instructive film."
Visibly annoyed when asked about the pistol, which also figured in the cable, Mr.
Khan says, "Everyone has their childhood dreams."
Mr. Khan says he and his partners "believe in" the 50-50 structure of TNK-BP, despite
the periodic disputes. He says AAR doesn't regret not selling earlier this year, when BP
and Rosneft discussed a deal to salvage their proposed alliance by buying out AAR's
stake in TNK-BP for about $32 billion in cash and stock.
Mr. Khan denies that he dominates company management, which is formally headed by
CEO and Chairman Mikhail Fridman, Alfa's largest shareholder. Mr. Fridman has said he
is a hands-off CEO.
Mr. Khan says there has been no indication that Russian authorities have given the
company the cold shoulder after the Rosneft mess, as some observers had predicted.
With its hybrid of foreign and local ownership, TNK-BP is a rarity in the Russian oil
sector, where local companies, particularly state-owned ones, have been dominant in
recent years.
But Mr. Khan says he sees the government easing the tax burden and opening more
opportunities—including access to the huge reserves on the Arctic shelf—to private
players to boost flagging oil production. The tightly regulated gas market also is likely to
open up over time, he says. That would allow TNK-BP to become one of Russia's biggest
gas producers, he says. "We're not planning to retire."

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Alfa has avoided the internal tensions of other Russian companies in recent years, in
which oligarchs have taken each other to court.
One of the most dramatic of such battles is under way in London, where one-time Kremlin
insider Boris Berezovsky has sued his former partner, oil tycoon Roman Abramovich. The
case has provided a rare window into the murky business dealings of 1990s Russia. Last
week, Mr. Abramovich testified that everyone in big business needed high-level political
and other protection, known as a krysha, the Russian word for "roof."
Mr. Khan takes issue with that. 'We never had a krysha. We were always our own
krysha."
Write to Gregory L. White at [e-mail]

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Case 1:17-cv-02041-RJL Document 20-5 Filed 01/29/18 Page 1 of 1

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Mikal Fridman, Petr Aven, and German Khan,
Plaintiffs,
v.
Bean LLC (a/k/a Fusion GPS) and Glenn
Simpson,
Defendants.

)
)
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)
)
)
)
)
)
)
)

Case No. 1:17-cv-02041

PROPOSED ORDER
Upon consideration of Defendants’ Motion to Dismiss the Amended Complaint for
Failure to State a Claim, along with the Memorandum of Points and Authorities in support
thereof, the Court ORDERS that:
Defendants’ Motion to Dismiss the Amended Complaint is GRANTED; and
Plaintiffs’ Amended Complaint is DISMISSED WITH PREJUDICE.

____________________________
Richard J. Leon
United States District Judge