Liberia: United States Court of Appeals Dismisses Libel Lawsuit Filed by Former Justice Minister Christina Tah, Rudolph Mcclain Against Global Witness

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MONROVIA – The United States Court of Appeals for for the District of Columbia Circuit has dismissed the appeal of the dismissal of libel lawsuit filed by former Minister of Justice and the former CEO of the National Oil Company of Liberia (NOCAL) against Global Witness for their publication alleging that the pair received bribes of US$35,000 for the sale of Oil Block 13 to Exxon Mobile.

According to Global Witness’s report, Catch me if you can, the organization first learned of Exxon’s Block 13 deal from the Liberian Extractive Industries Transparency Initiative (LEITI), a semi-autonomous Liberian agency that publishes information about payments made by energy companies to the Liberian government. Because of NOCAL’s “tarnished track record of corrupt deals, Global Witness saw there was a risk of bribery and began its investigation.”

Global Witness focused on Block 13 in order to highlight the “critical information” provided by section 1504 of the Dodd-Frank Act which “like LEITI, . . . requires all oil, gas, and mining companies to report the payments they make to governments.”

Catch me if you can addresses Block 13’s background and the corruption surrounding the BCP deal. For example, it states BCP was “likely part-owned by [now-former Liberian] government officials with the power to influence the award of oil licenses,” and that the award of Block 13 to BCP therefore violated Liberian law. The report also claims that the BCP license was approved due to bribery. It then explains how Exxon structured its transaction to alleviate its concerns about the BCP deal.

The report principally addresses the $35,000 payments in a section titled “Monrovia, 2013: Awash in Cash.”

This section discusses what are repeatedly described as “unusual, large” payments made to HTC members, referencing Tah and McClain by name. It states that NOCAL characterized the payments as “bonuses,” using scare quotes whenever it repeats the word “bonus,” and claims that the payments “appear . . . to be linked to the HTC’s signing of Block 13.”

In support of its claim that the payments were “large” and “unusual,” the report states that “there is no sign of equivalent bonuses during” the surrounding years, “except for smaller yearly bonuses paid shortly before Christmas” that “the payments represented a 160 percent increase on the reported highest salary paid to a Liberian minister” and that one HTC member who was supposedly working for free nonetheless received a payment. The report then gives the definition of bribery under Liberian law and references some of the corruption surrounding the 2007 BCP deal—specifically, payments NOCAL made to members of the Liberian legislature to ensure approval of that earlier license, which NOCAL deemed “lobbying fees,” and which the Liberian Government’s General Auditing Commission later “classified as bribes.”

A few weeks before Global Witness issued the report, it sent letters to HTC members informing each that “we believe that the payment made by NOCAL to you was most likely a bribe, paid as a reward to ensure that [Block] 13 was negotiated successfully,” and asking for a response.

Several HTC members, including Tah, denied that the payments were bribes, insisting they were bonuses authorized by NOCAL’s board that were “appropriately earned given the extraordinary success of the Exxon negotiations,” and pointing out that all NOCAL employees received bonuses. Global Witness included excerpts from these denials in the report.

The report also discusses Exxon’s relationship to these payments. It characterizes them as evidence of Exxon’s possible “complicit[y]” in “Liberia’s corrupt oil sector,” declaring that “Exxon should have known better.” According to the report, “Exxon . . . knew it was buying a license with illegal origins” and the payments were “in effect . . . likely made with Exxon’s money.”

Although stating that “Global Witness believes that Exxon should have considered it possible that money the company provided to NOCAL could have been used as bribes in connection with Exxon’s Block 13 deal,” the report acknowledges that “Global Witness has no evidence that Exxon directed NOCAL to pay Liberian officials, nor that Exxon knew such payments were occurring.”

Lastly, Global Witness called on the Liberian government to investigate the payments and, in the event such investigation uncovers unlawful behavior, urged the U.S. Department of Justice “to determine if the company violated the [Foreign Corrupt Practices Act].”

Global Witness sent copies of the report to the U.S. Attorney General and the Chairman of the Securities and Exchange Commission.

Following the report’s publication, the Liberian government investigated the payments and concluded that they did not “constitute bribe[s] within the context of [Liberian] law” and were not “made so [the HTC] could undertake [an] official act.

The Liberian government nonetheless recommended that the HTC members return the payments. Tah and McClain refused, asserting that the payments were above-board bonuses for a job well done.

Believing that Catch me if you can falsely impugn their integrity and reputations, Tah and McClain sued Global Witness for defamation and false light invasion of privacy. They dispute none of the facts contained in the report but argue that Global Witness falsely “communicated [through implication] . . . that . . . each took a bribe in exchange for their roles in the Exxon purchase of Block 13.”

Global Witness responded with a special motion to dismiss under the District of Columbia’s anti-SLAPP (strategic lawsuits against public participation) statute, which seeks to protect speakers from lawsuits “filed by one side of a political or public policy debate aimed to punish or prevent the expression of opposing points of view.”

The court, however, observed that the former Liberian government officials did not advance any argument that disputes Exxon mobile as the briber, as the Global Witness report admits that he had no evidence that Exxon directed NOCAL to pay Liberian officials, nor that Exxon knew such payments were occurring.”

Tah and McClain first alleged that Global Witness began their investigation with “a preconceived story line” that they argue “is plainly probative of actual malice.” In support, they point out that the letters in which Global Witness asked for comment state that the $35,000 payments were “most likely” bribes.

But the court said “preconceived notions” or “suspicion[s]” usually do “little to show actual malice.”

The court further opined that seeking comment in advance of publication is a standard journalistic practice.

According to the Court, Tah and McClain argue that “the stunning failure of Global Witness to include . . . Seward Cooper, as among the [HTC] members who received a $35,000 bonus” reveals actual malice because Cooper, along with Tah, determined that the payments were legal.

“We do not see how this omission shows awareness of falsity or reckless disregard for the truth. If anything, that one of the lawyers responsible for conducting a legal analysis of the payments was himself in line to receive one makes the payments even more suspicious. For all these reasons, Tah and McClain have failed to plausibly allege that Global Witness acted with actual malice. This deficiency proves fatal not only to their defamation claims but to their false light claims as well,” the court ruled.

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