Sheldon G. Adelson v. David A. Harris, Marc R. Stanley and National Jewish Democratic Council

Familiarity with the facts of this case, as set forth in this

court’s decision in Adelson v. Harris, 774 F.3d 803 (2d Cir. 2014), is

assumed. This case involves defamation claims brought by

Appellant Sheldon Adelson against Appellees National Jewish

Democratic Council, its Chair, Marc Stanley, and its President and

CEO, David Harris. Appellant’s claim of defamation is based on

Appellees’ 2012 online petition urging then presidential candidate

Mitt Romney to reject Appellant’s financial contributions because

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Appellant’s money came from his Chinese casinos and was “dirty”

and “tainted,” and because Appellant “’personally approved’ of

prostitution in his [Chinese] casinos.” J.A. 38 (emphasis omitted).

Using a hyperlink, the petition attributed these “facts” to an

Associated Press (“AP”) story. Id.

The United States District Court for the Southern District of

New York dismissed Appellant’s action under Rule 12(b)(6) and

applied the Nevada anti‐SLAPP statute to award attorney’s fees and

costs to Appellees. See Adelson v. Harris, 973 F. Supp. 2d 467

(S.D.N.Y. 2013). On appeal, we affirmed the district court in part, but

certified two questions to the Nevada Supreme Court:

(1) whether a hyperlink to source material about judicial

proceedings suffices in an online petition for purposes of

applying Nevada’s common law fair report privilege; and (2)

whether the Nevada anti‐SLAPP statute, as it existed prior to

the amendments in 2013, covered speech that seeks to

influence an election but that is not addressed to a

government agency.

Adelson, 774 F.3d at 811.

The Nevada Supreme Court accepted the certified questions

in 2015, and on September 27, 2017, issued its answers. Adelson v.

Harris, 402 P.3d 665 (Nev. 2017). As to the first question, the court

held that “a hyperlink to source material about a judicial proceeding

may suffice as a report within the common law fair report

privilege,” and that “the online petition, as it existed when

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[Appellant’s] complaint was filed, fell within the purview of

Nevada’s fair report privilege.” Id. at 666, 670.

As to the second question, the court directed us to its recently

issued opinion Delucchi v. Songer, 396 P.3d 826 (Nev. 2017), and

explained that, pursuant to Delucchi, Nevada’s anti‐SLAPP statute

covers “[c]ommunication that is aimed at procuring any

governmental or electoral action, result or outcome . . . which is

truthful or is made without knowledge of its falsehood, even if that

communication was not addressed to a government agency.” Id. at

666, 670 (internal quotation marks and citations omitted).

Following receipt of the Nevada Supreme Court’s response,

we ordered the parties to submit letter briefs addressing the import

of that response to the resolution of this appeal. In response,

Appellant urged us to revive his defamation claim, arguing (1) that

his claim also rests on the non‐privileged statement that he “used

funds from prostitution to finance his campaign contributions,” D.I.

177 at 3‐6 (emphasis omitted); (2) that the district court erred in

holding, as a matter of law, that Appellees made the statements

without knowledge of their falsehood; and (3) that he should have

been allowed additional discovery on the anti‐SLAPP statute’s

scienter requirement.

The district court, applying Nevada law, dismissed

Appellant’s claim because Appellees’ statements rested in part on

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opinion and were otherwise protected by the fair report privilege.

Adelson, 973 F. Supp. 2d at 471. We have already affirmed that ruling

as it pertained to statements of opinion. Adelson, 774 F.3d at 807.

Nevada law grants “absolute immunity from defamation . . .

to the news media and the general public to report newsworthy

events in judicial proceedings.” Sahara Gaming Corp. v. Culinary

Workers Union Local 226, 115 Nev. 212, 215 (1999). The contested

allegations―that Appellant personally approved of

prostitution―came from an AP story, describing a sworn declaration

made in a lawsuit by an ex‐employee against Appellant’s company.

In our prior opinion, we explained that these statements, “if

unprivileged,” may be actionable. Adelson, 774 F.3d at 807. So we

asked the Nevada Supreme Court, by certification, whether the

hyperlinks used in the petition sufficiently attributed the statements

to the AP story to invoke the fair report privilege. See id. at 808. That

court’s affirmative response resolves the issue. The fair report

privilege applies and the district court’s dismissal of Appellant’s

defamation claim was correct.

The district court also applied Nevada’s anti‐SLAPP statute to

Appellant’s case. Appellant argues that the district court erred in its

conclusion that, as a matter of law, the challenged statements were

made “without knowledge of falsehood,” as required by the statute.

D.I. 177 at 7 (internal quotation marks omitted). We did not

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explicitly address this ruling in our prior opinion. But, when we

explained that the district court properly exercised its discretion in

deciding not to allow discovery on the topic, we implicitly approved

of the district court’s determination that, as a matter of law,

Appellees acted in good faith. See Adelson, 774 F.3d at 809 (“[T]he

discovery sought was not reasonably calculated to create a material

issue of fact . . . .”).

In any event, we agree with the district court: Appellant failed

to allege “knowledge of falsity, much less facts to support such a

conclusion.” Adelson, 973 F. Supp. 2d at 503. Thus, we affirm both

the district court’s denial of Appellant’s request for additional

discovery and the district court’s application of the anti‐SLAPP

statute to this case.

For these reasons, the district court’s dismissal of Appellant’s

case is AFFIRMED.