WILLIAM H. ORRICK, United States District Judge.
Plaintiffs Stephen Wynn and Wynn Resorts, Ltd. (collectively, "Wynn") allege that defendant James Chanos falsely stated that Wynn violated the Foreign Corrupt Practices Act ("FCPA") at a symposium at the University of California at Berkeley. That is not what Chanos said. I find that Chanos's statements regarding Wynn and the FCPA violations do not constitute slander per se and were protected opinions, not assertions of fact. In addition, the complaint does not adequately plead actual malice. Chanos moves to dismiss and also to strike under California's anti-SLAPP statute, claiming that his speech is a matter of public interest and that Wynn's defamation claim fails as a matter of law.
Stephen Wynn is the Chief Executive Officer and Chairman of the Board of Wynn Resorts, a publicly traded corporation that develops, owns and operates resorts in Las Vegas and Macau. Compl. ¶¶ 2-3 (Dkt. No. 1); Mot. Dismiss at 3 (Dkt. No. 16). Chanos is the owner and manager of a private investment management firm. Mot. Strike at 3 (Dkt. No. 11). He is well known for his "short selling" investment strategy, which he notably used to profit from trading Enron stock.
Chanos was invited to participate in an annual symposium for investigative reporting concerning the gambling industry, corruption, and organized crime in China. Mot. Strike at 7-8. This event featured a panel including Chanos, the former head of the Royal Hong Kong Police's Criminal Intelligence Bureau, a New York Times reporter, and a convicted felon associated with organized crime in Macau. Tr. 1-3 (Dkt. No. 14-1, Ex. 1). The panel watched clips of and then discussed an upcoming television documentary that focuses on the gambling industry in Macau. Mot. Dismiss at 6. The event, which was held on April 25, 2014 at the U.C. Berkeley Graduate School of Journalism, was invitation only, and was attended by journalists, law enforcement, and government officials. Id.; Compl. ¶ 12.
After viewing a clip of the documentary, the moderator of the panel asked Chanos why he was "shorting Macau in China," or placing short bets on the Macau gambling industry. Tr. 5. Chanos responded:
Tr. 6. Later on in the conversation, Chanos stated, "I mean, the fact of the matter is in the Foreign Corrupt Practices Act, almost any major company doing business in China knows something about the law; it's a pretty broad law. Almost any company doing meaningful amounts of business in China probably could be found in violation of FCPA." Id. at 41.
Wynn argues that these statements constitute slander per se, and that they charge Wynn with violating the FCPA. As evidence of the falsity of that position, it points to the fact that the U.S. Securities and Exchange Commission ("SEC") and the Nevada Gaming Control Board ("NGCB") exonerated Wynn of all alleged FCPA allegations. Oppo. Mot. Dismiss at 16 (Dkt. No. 31). According to Wynn, Chanos ignored this "readily available information"
A motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(6) shall be granted where the plaintiff fails "to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). In reviewing these motions, courts view all of the pleaded facts as true and in the light most favorable to the plaintiff. Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir.2001). "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotations and citations omitted). The court is not obligated to accept as true unreasonable inferences, conclusory statements, or allegations that "contradict matters properly subject to judicial notice or by exhibit." In re Gilead Sciences Sec. Litig., 536 F.3d 1049, 1055 (9th Cir.2008).
In order to survive a motion to dismiss their defamation claim, the plaintiffs "must not only establish that [the assertions] about which they complain are reasonably capable of sustaining a defamatory meaning, they must also show that they are not mere comment within the ambit of the First Amendment." Knievel v. ESPN, 393 F.3d 1068, 1073-74 (9th Cir. 2005) (internal quotations and citations omitted).
Slander per se "is a false and unprivileged publication, orally uttered ... which ... [c]harges any person with crime, or with having been indicted, convicted, or punished for crime." CAL. CIV. CODE § 46(1). A claim for slander per se requires a showing that the defendant made a factual assertion, as opposed to an opinion, that was false. Baker v. Los Angeles Herald Exam'r, 42 Cal.3d 254, 259-60, 228 Cal.Rptr. 206, 721 P.2d 87 (1986).
The question of whether a statement constitutes an actionable factual assertion is a question of law for the court to decide. Franklin v. Dynamic Details, Inc., 116 Cal.App.4th 375, 385, 10 Cal.Rptr.3d 429 (2004). However, if "the statement is susceptible of both an innocent and a libelous meaning," the question should be presented to the trier of fact. Id. Statements are more likely to be considered opinions when they contain "loose, figurative, or hyperbolic language which would negate the impression" that a speaker was seriously maintaining that a person committed a crime. Milkovich v. Lorain Journal Co., 497 U.S. 1, 21, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990).
The Ninth Circuit "distinguishes between two kinds of opinion statements: those based on assumed or expressly stated facts, and those based on implied, undisclosed facts." Standing Comm. on Discipline of U.S. Dist. Court for Cent. Dist. of California v. Yagman, 55 F.3d 1430, 1439 (9th Cir.1995) (internal quotations and citations omitted). Statements that give rise to an inference that there are undisclosed facts are actionable as factual assertions. Id. By contrast, opinions that are based on expressly stated or disclosed facts are actionable "only if the stated facts are themselves false and demeaning." Id. This is because "[w]hen the facts underlying a statement of opinion are disclosed, readers will understand they are getting the author's interpretation of the facts presented; they are therefore unlikely to construe the statement as insinuating
California courts employ a "totality of the circumstances" test to determine whether an allegedly defamatory statement is actionable fact or nonactionable opinion. Baker, 42 Cal.3d at 260, 228 Cal.Rptr. 206, 721 P.2d 87. This involves consideration of several factors:
Id. at 260-61, 228 Cal.Rptr. 206, 721 P.2d 87 (internal quotations and citations omitted). In addition, courts consider "whether the statement itself is sufficiently factual to be susceptible of being proved true or false." Underwager v. Channel 9 Australia, 69 F.3d 361, 366 (9th Cir.1995); Amaretto Ranch Breedables, LLC v. Ozimals, Inc., No. CV 10-5696 CRB, 2013 WL 3460707, at *3 (N.D.Cal. July 9, 2013).
If a plaintiff is a public figure, the First Amendment additionally requires that he or she show by clear and convincing evidence that the defendant acted with actual malice. Underwager, 69 F.3d at 365. "The question whether the evidence in the record in a defamation case is sufficient to support a finding of actual malice is a question of law." Id. (internal quotations and citations omitted). In order to show malice, a plaintiff must demonstrate that the defendant "either knew his statement was false or subjectively entertained serious doubt his statement was truthful," Christian Research Inst. v. Alnor, 148 Cal.App.4th 71, 84, 55 Cal.Rptr.3d 600 (2007), or "with reckless disregard for [the] truth." Steam Press Holdings, Inc. v. Hawaii Teamsters, Allied Workers Union, Local 996, 302 F.3d 998, 1003 (9th Cir. 2002). The Supreme Court has clarified "that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968).
Finally, the California Civil Code protects statements made "[i]n a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information." CAL. CIV. CODE § 47(c).
The parties have submitted multiple requests for judicial notice. I will only address the requests for judicial notice that I grant and upon which I rely in this Order, and DENY AS MOOT all other requests.
In resolving a Rule 12(b)(6) motion, a district court ordinarily may not look beyond the pleadings, and doing so will convert a motion to dismiss into a motion for summary judgment. Lee, 250 F.3d at 688. However, there are two exceptions to this general rule. Id. First, courts may take judicial notice of materials that are submitted as part of the complaint, or materials of undisputed authenticity and upon which the complaint necessarily relies. Id. Second, courts may consider matters of public record or other matters subject to judicial notice under Federal Rule of Evidence 201. See id. at 688-89; FED. R. EVID. 201.
I take judicial notice of the video and corresponding transcript of the symposium during which Chanos made the allegedly defamatory remarks. This evidence, while not submitted as part of the Complaint, is integral to Wynn's sole cause of action for slander per se. Wynn also does not contest the authenticity of either the transcript or the video. Instead, Wynn objects to these materials because they do not include the documentary clips that were viewed at the symposium. stri at 7. I have already ruled that the clips from the documentary are not relevant or necessary to resolve the claim for slander per se. Order at 1-2 (Dkt. No. 30). Although Wynn argues that the clips provide valuable context, see Oppo. Mot. Dismiss at 7, the contents of the clips do not change the fact that Wynn's complaint fails as a matter of law on the grounds discussed below.
Next, SEC forms such as a Form 8-K or Form 10-K are matters of public record and may be subject to judicial notice. See, e.g., Oklahoma Firefighters Pension & Ret. Sys. v. IXIA, No. CV-13-08440 MMM SHX, 50 F.Supp.3d 1328, 1348-49, 2014 WL 4978568, at *13 (C.D.Cal. Oct. 6, 2014). Accordingly, I take judicial notice of Wynn's Form 8-K from 2013 (Dkt. No. 33-4), Wynn's Form 8-K from 2012 (Dkt. No. 14-4, Ex. 27), Wynn's Form 10-K from 2013 (Dkt. No. 14-1, Ex. 5), Wynn's Form 10-K from 2012 (Dkt. No. 14-2, Ex. 9), and Wynn's Form 10-K from 2011 (Dkt. No. 14-4, Ex. 26). I also take judicial notice of the U.S. Department of Justice's ("DOJ") Motion to Intervene in another case involving Wynn Resorts, Wynn Resorts, Ltd. v. Okada et al.
The Complaint alleges that "Chanos stated that Wynn and Wynn Resorts had
As a preliminary question, I consider whether Chanos actually made a slanderous statement. In order to state a claim for defamation, the plaintiff must provide evidence (i) "of a statement of fact," (ii) "that is provably false." Seelig v. Infinity Broad. Corp., 97 Cal.App.4th 798, 809, 119 Cal.Rptr.2d 108 (2002). Under California law, a defamatory statement of fact can be express or implied. Price v. Stossel, 620 F.3d 992, 1003 (9th Cir.2010). To demonstrate that a defendant made an implied statement of fact, the plaintiff must show that the statement is "reasonably... understood as implying the alleged defamatory content." Id. (internal quotation and citations omitted). Chanos did not make any outright assertion that Wynn violated the FCPA. From the plain wording of what was spoken and for the reasons detailed below, neither is there is a reasonably implied statement that Wynn violated the FCPA.
Chanos stated: "I got a little nervous the deeper we dug into Macau and the more I got concerned that although I was long, the U.S. casino operators, like Mr. Adelson and Mr. Wynn, I began to really get concerned about the risk I was taking with clients' money under Foreign Corrupt Practices Act and a variety of other, you know, aspects of exactly how business is done there." Tr. 6. Although Wynn argues that "[n]o inference is needed to understand that evidence of FCPA violations triggered Chanos' decision to change his investment strategy," Oppo. Mot. Dismiss at 13, I find the opposite to be true. It takes a significant inferential leap to conclude that Chanos's general uncertainty about the questionable business methods in Macau equates to an assertion that Wynn violated the FCPA.
In addition, Chanos's statement is not defamatory for the simple reason that it cannot be false. As plaintiffs point out, a "critical question is whether there is a `core of objective evidence' that can be brought to bear to prove or disprove the challenged statement." Oppo. Mot. Dismiss at 14 (quoting Milkovich, 497 U.S. at 21, 110 S.Ct. 2695). Here, even definitive proof that Wynn did not commit any acts in violation of the FCPA would not would not alter the tenor of Chanos's statements or render them false. It is possible for companies to comply entirely with the law and yet conduct business in a way that poses an investment risk. In fact, Chanos's subsequent statements express this sentiment. See Tr. 6 (discussing "legal fraud" and compliance with "every aspect of legal requirements in what they were doing" but with "an attempt to mislead"); see also Amaretto, 2013 WL 3460707, at *5 (recognizing principle that "where the question of truth or falsity is a close one, a court should err on the side of nonactionability.") (internal quotations and citations omitted). Because there is no defamatory statement, Wynn's complaint fails to state a claim under Federal Rule of Civil Procedure 12(b)(6).
Wynn's complaint also fails because Chanos's statements at the conference are non-actionable opinion. Once again, the key to this determination is whether a reasonable person could construe any of Chanos's statements as a
Looking first to the statements at issue, Chanos expressed the position that he was very "concerned" after he "dug" deeper into "Macau," where Wynn and others operate casinos. He did not specify the basis for this concern, potentially giving rise to an inference of undisclosed facts, including that the U.S. casino operators in Macau violated the FCPA. See Yagman, 55 F.3d at 1439. However, Chanos immediately qualified his statements about the FCPA with a contention that corporations in Macau hide behind junket companies, engage in "legal fraud," and "adher[e]to every aspect of legal requirements ... [but with] an attempt to mislead." Tr. 6. These comments would prevent a reasonable listener from interpreting Chanos's words as asserting that Wynn actually violated the FCPA.
In addition, Chanos's comments appear to fall within the category of "loose" language protected by Milkovich, or words "cautiously phrased in terms of apparency" described in Baker. Milkovich, 497 U.S. at 21, 110 S.Ct. 2695; Baker, 42 Cal.3d at 260, 228 Cal.Rptr. 206, 721 P.2d 87. Chanos stated that he was "nervous," "concerned" and not "comfortable" with the casino operators' actions and that he did not want to take the risk of investing in the gambling industry. Tr. 6. This language is vague enough that while a listener may ultimately conclude Wynn and other casino operators violated the FCPA in Macau, he or she could not find by clear and convincing evidence that Chanos intended to convey that Wynn violated the FCPA. See Thomas v. Los Angeles Times Commc'ns, LLC, 189 F.Supp.2d 1005, 1013 (C.D.Cal.), aff'd, 45 Fed.Appx. 801 (9th Cir.2002) (while "[a] reasonable reader or juror might conclude [plaintiff made false statement] ... no reasonable juror could find that Defendants intended to convey that impression"); Dodds, 145 F.3d at 1063-64 (a plaintiff "must show that a jury could reasonably find by clear and convincing evidence that [the defendant] intended to convey the defamatory impression") (emphasis added) (internal quotations and citations omitted).
Turning to the second Baker factor, the broad context and circumstances of the panel discussion support a decision that Chanos's statements are opinions, and not factual assertions. First, Chanos is a financial investor. By profession, he makes calculations and speculates about the performance of various businesses. In response to the question of why he "short betted" in Macau, Chanos expressed his concern about risks from potential FCPA violations. Tr. 6. A reasonable listener would likely interpret Chanos's discussions of FCPA violations as a highly educated guess dealing in probabilities, or as an explanation for his investment decisions. See, e.g., Biospherics, Inc. v. Forbes, Inc., 151 F.3d 180 (4th Cir.1998) (stock tip article instructing readers to short bet stock because product was poor contained opinion only).
In addition, the bases for Chanos's opinions were not entirely undisclosed. Chanos discussed the "junket companies" that contributed to corporate deception in China
Chanos's comments were also made in the context of an academic symposium. Wynn argues that this conference was "infused with academic rigor and ostensible journalistic integrity" and that "the audience expected that it would hear true facts from the panel's experts." Oppo. Mot. Dismiss at 12. But Wynn's assessment must be juxtaposed with the fact that "circumstances in which an audience may anticipate efforts by the parties to persuade others to [sic] their positions by use of epithets, fiery rhetoric, or hyperbole" weigh in favor of finding an assertion to be opinion and not fact. Steam Press, 302 F.3d at 1007 (internal quotations and citations omitted). While Chanos was not speaking at a volatile public debate, he was a panel member of an academic conference. As in a debate, Chanos was invited to impart his opinion of and expertise in the investment sector in Macau. His contributions were intended to be cast in light of, and potentially in contrast to, practitioners from other fields. In this context, the audience was likely to understand Chanos's comments as opinions rather than as factual assertions. See Partington v. Bugliosi, 56 F.3d 1147, 1154 (9th Cir.1995) (stressing the need to provide "room for expressions of opinion by commentators, experts in a field, figures closely involved in a public controversy, or others whose perspectives might be of interest to the public").
Moreover, Chanos later stated that "[a]lmost any company doing meaningful amounts of business in China probably could be found in violation of FCPA." Tr. 41. This comment is clearly hyperbolic and cannot be considered to be defamatory. See Milkovich, 497 U.S. at 21, 110 S.Ct. 2695. In fact, it provides further proof that Chanos's earlier statements were opinions, and not factual assertions. This language reflects an extremely cautious view of potential FCPA violations, making it less likely that the audience would conclude Chanos had uncovered actual evidence of FCPA violations by Wynn.
The third and final factor discussed by courts in making a determination of fact or opinion, whether Chanos's statements are capable of being proved true or false, was discussed above and provides support for the fact that Chanos's comments were opinion only. See Underwager, 69 F.3d at 366.
For all these reasons, I find that no reasonable listener could conclude that Chanos's comments amounted to an assertion that Wynn violated the FCPA. Wynn failed to meet its burden that the statements are not opinion protected by the First Amendment. Knievel, 393 F.3d at 1074.
The parties do not dispute that Wynn is a public figure and that Wynn must therefore prove Chanos acted with actual malice. See Oppo. Mot. Dismiss at 17. Because Chanos's statements are not capable of being proved false, Chanos could not have acted with malice. Assuming, however, that Chanos made a factual assertion that Wynn violated the FCPA, Wynn must demonstrate that Chanos did so with knowledge of or serious subjective doubts as to its truth. See Alnor, 148 Cal.App.4th at 84, 55 Cal.Rptr.3d 600. Even construing the facts in the light most favorable to the plaintiffs, the complaint is deficient as to this element of Wynn's cause of action.
With respect to malice, the complaint alleges that "Chanos disregarded and purposefully
Wynn argues that it has established prima facie evidence of malice because Wynn publicly denied that it had committed FCPA violations, and because the SEC and other agencies found that Wynn did not commit any violations. Oppo. Mot. Dismiss at 16-18. But this evidence does not definitely prove that Chanos acted with malice, as the fact that the SEC ultimately did not find Wynn in violation of the FCPA does not mean that Wynn committed no FCPA violations whatsoever. In addition, courts have found that general allegations that a defendant should have known or should have investigated the truth of his or her statements do not adequately plead actual malice. See Nicosia v. De Rooy, 72 F.Supp.2d 1093, 1109 (N.D.Cal.1999) ("conclusory statements that [a defamation defendant] should have known the truth does not satisfy the heightened pleading standard" of actual malice); Barger v. Playboy Enterprises, Inc., 564 F.Supp. 1151, 1156 (N.D.Cal.1983) aff'd, 732 F.2d 163 (9th Cir. 1984).
Wynn does not provide any specific allegations that would support a finding that Chanos harbored serious subjective doubts as to the validity of his assertions. The complaint's allegation that Chanos "published [the statements] with reckless disregard for the truth," Compl. ¶ 21, is conclusory, as it merely recites an element of slander and does not present any potential supporting facts. This is insufficient to satisfy the "demanding burden" for pleading actual malice in defamation actions. Z.F. ex rel M.A.F. v. Ripon Unified Sch. Dist. (RUSD), No. 2:10-CV-00523, 2011 WL 356072, at *10 (E.D.Cal. Feb. 2, 2011) aff'd sub nom. Z.F. v. Ripon Unified Sch. Dist., 482 Fed.Appx. 239 (9th Cir. 2012). Moreover, the facts subject to judicial notice directly contradict the other allegations in the complaint regarding Chanos's alleged fabrication and disregard for reliable information. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001) opinion amended on denial of reh'g, 275 F.3d 1187 (9th Cir.2001) (In reviewing 12(b)(6) motion "[t]he court need not ... accept as true allegations that contradict matters properly subject to judicial notice").
First, both the SEC and the NGCB investigated Wynn for its activities in Macau, which is itself cause to question Wynn's compliance with the FCPA. Dkt. No. 33-4. These investigations apparently related to a donation by Wynn to the University of Macau. Id. Second, Wynn's 2013 10-K provides explicit information about potential FCPA violations. It states that:
Dkt. No. 14-1, Ex. 5 at 19 (emphases added). Third, the DOJ commenced a criminal investigation into the same events underlying the Okada affair, see Dkt. No. 14-2, Ex. 12, and Wynn does not dispute that its one-time largest beneficial shareholder faced serious criminal charges under the FCPA.
All of these government documents nullify Wynn's allegations that Chanos disregarded publicly known information and that "Chanos had no reliable information whatsoever" on which to base his statements. Compl. ¶ 20. Actions taken by the SEC and the DOJ are reliable, readily available, and of interest to reasonable investors in the industry. In the face of such evidence, it is not possible to establish malice on the basis that a defendant ignored publicly known information. Wynn failed to adequately plead actual malice under Rule 12(b)(6).
Wynn continues to assert that additional discovery would allow it to uncover evidence of actual malice. Oppo. Mot. Dismiss at 18. However, there is no reasonable expectation that discovery will prove any evidence that demonstrates subjective malice on Chanos's behalf. As Wynn itself contends, it must provide "enough fact[s] to raise a reasonable expectation that discovery will reveal evidence to prove [its] claim." Oppo. Mot. Dismiss at 15 (internal quotations and citations omitted). This was not done here, as Wynn's complaint relies solely on Chanos's presumed knowledge of "readily available information." Compl. ¶ 19. Because the complaint does not sufficiently allege defamation or malice, Chanos's motion to dismiss is GRANTED.
For the above reasons, I GRANT Chanos's Motion to Dismiss. Because of the liberal standard for granting leave to amend, the dismissal is without prejudice. See, e.g., Verizon Del., Inc., 377 F.3d at 1091. If plaintiffs choose to amend their complaint, they must do so by January 13, 2015.
