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Adelson v. Harris
876 F.3d 413
2d Cir.
2017
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*1 13 ‐ 4173 ‐ cv v.

In the

United States Court of Appeals

For the Second Circuit

________ A UGUST T ERM , 2014 A RGUED : A UGUST 28, D ECIDED : N OVEMBER No. ‐ ‐ cv

S HELDON G. A DELSON , Plaintiff ‐ Appellant, D AVID A. H ARRIS , M ARC R. S TANLEY , AND N ATIONAL J EWISH D EMOCRATIC C OUNCIL ,

Defendants ‐ ________

Appeal from United States District Court Southern District New York. No. cv ‐ – J. Paul Oetken, District Judge ________

Before: C ALABRESI R AGGI C HIN Circuit Judges

________

Plaintiff Sheldon appeals September order United States District Court Southern District York (Oetken, J. ) dismissing suit. We *2 previously certified two questions Court. Having received response, affirm.

James R. Ferguson, Mayer Brown LLP, Chicago, IL (Michele L. Odorizzi, Demetrios G. Metropoulos, Mayer Brown LLP, Chicago, IL; Andrew L. Frey, Mayer Brown LLP, New York, NY; L. Lin Wood Jonathan D. Grunberg, Wood, Hernacki & Evans, LLC, Atlanta, GA, on briefs ), Plaintiff Appellant Lee Levine (Seth D. Berlin, Gayle C. Sproul, Chad R. Bowman, Rachel Strom, on briefs ), Levine Sullivan Koch & Schulz, LLP, York, NY, Defendants

P ER C URIAM :

Familiarity with facts case, set forth this decision (2d Cir. 2014), is assumed. This case involves defamation claims brought by Sheldon against National Jewish Democratic Council, Chair, Marc Stanley, its President CEO, David Harris. based Appellees’ online urging then presidential candidate Mitt Romney reject financial contributions *3 money came his Chinese casinos and “dirty” and “tainted,” and “’personally approved’ in [Chinese] casinos.” J.A. (emphasis Using a hyperlink, petition attributed “facts” to an Associated Press (“AP”) story. Id.

The United States District Court Southern District York dismissed action under Rule 12(b)(6) and applied Nevada anti SLAPP to award attorney’s fees and costs to Adelson v. Harris (S.D.N.Y. 2013). On appeal, affirmed in part, but certified two questions to Nevada Supreme Court:

(1) whether a hyperlink source material about judicial proceedings suffices an online purposes applying common law fair report privilege; (2) whether statute, as it existed amendments 2013, covered speech seeks influence an election but addressed government agency. Court accepted certified questions September 2017, issued answers. P.3d (Nev. 2017). As first question,

held “a hyperlink source material about judicial proceeding may suffice as within common law report privilege,” “the online petition, it existed when *4 [Appellant’s] complaint was filed, fell within purview of Nevada’s privilege.” Id. at

As to second question, directed us to its recently issued opinion Delucchi Songer P.3d (Nev. 2017), pursuant Delucchi anti ‐ SLAPP covers “[c]ommunication that is aimed at procuring any governmental or electoral action, result or outcome which is truthful or made without knowledge of falsehood, even if that communication addressed government agency.” Id. (internal quotation marks citations

Following receipt Court’s response, ordered parties submit letter briefs addressing import that response resolution appeal. response, urged us revive his claim, arguing (1) that his claim also rests on non ‐ privileged statement he “used funds finance campaign contributions,” D.I. (emphasis omitted); (2) erred holding, law, made statements without knowledge their falsehood; (3) he should have been allowed additional discovery on statute’s scienter requirement. court, applying dismissed Appellees’ statements rested part

opinion were otherwise protected by the fair report privilege. Adelson , 973 at 471. We have already affirmed ruling as it pertained statements opinion. 774 F.3d at 807. law grants “absolute immunity from defamation the news media the general public report newsworthy events in judicial proceedings.” Sahara Gaming Corp. Culinary Workers Union Local Nev. (1999). The contested allegations ― Appellant personally approved ― came an AP story, describing sworn declaration made lawsuit by an ex employee against Appellant’s company. our opinion, we statements, “if unprivileged,” may be actionable. at 807. So asked Court, by certification, whether hyperlinks used sufficiently attributed statements AP story invoke fair report privilege. id. That affirmative response resolves issue. The privilege applies district dismissal correct. also applied case. argues erred conclusion as challenged statements were made “without knowledge falsehood,” required by statute. D.I. (internal quotation marks We did *6 explicitly address this ruling our opinion. But, when we district properly exercised discretion deciding not allow discovery topic, we implicitly approved of district court’s determination of acted good faith. (“[T]he discovery sought reasonably calculated create material issue fact . .”). any event, we agree with district court: failed allege “knowledge falsity, much less facts support such

conclusion.” Thus, affirm both district court’s denial request additional discovery application case.

For reasons, dismissal case AFFIRMED

Case Details

Case Name: Adelson v. Harris
Court Name: Court of Appeals for the Second Circuit
Date Published: Nov 29, 2017
Citation: 876 F.3d 413
Docket Number: 13-4173-cv
Court Abbreviation: 2d Cir.
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