Passantino Defamation Suit Survives Motion To Dismiss
A defamation suit brought by Cassidy Hutchinson’s former attorney against Andrew Weissmann has survived a motion to dismiss in an order of the United States District Court for the District of Columbia (Judge AliKhan)
Plaintiff Stefan Passantino brings this action against Defendant Andrew Weissmann, alleging defamation (Count I) and injurious falsehood (Count II) stemming from a September 2023 social media post. In the post, Mr. Weissmann referredto Mr. Passantino—a lawyer—as someone “who coached [a Congressional witness] to lie.” ECF No. 1 ¶ 18. Mr. Weissmann moves to dismiss the case under Federal Rule of Civil Procedure 12(b)(6). ECF No. 7. For the reasons explained below, the court will grant his motion in part and dismiss Count II, but will allow Count I to proceed.
The order recounts Ms. Hutchinson’s testimony
At her fifth deposition, Ms. Hutchinson discussed a line of questioning from her first deposition about the January 6 incident in the Presidential limousine. Id. 55:3-56:21. She explained that, during a break after facing repeated questions on the topic, she had told Mr. Passantino in private, “I’m f*****. I just lied.” Id. 55:15-16. Mr. Passantino responded, “You didn’t lie. . . . They don’t know what you know, Cassidy. They don’t know that you can recall some of these things. So you [sic] saying ‘I don’t recall’ is an entirely acceptable response to this.” Id. 55:16-20. He concluded, “You’re doing exactly what you should be doing.” Id. 55:23-24. Ms. Hutchinson explained that, in the moment, she “[felt] like [she] couldn’t be forthcoming when [she] wanted to be.” Id. 56:3-4.
Ms. Hutchinson did, however, state at her fifth deposition: “I want to make this clear to [the Select Committee]: Stefan [Passantino] never told me to lie.” ECF No. 1 ¶ 17; Sept. 14 Deposition, Tr. 42:11. She recalled him saying to her: “I don’t want you to perjure yourself, but ‘I don’t recall’ isn’t perjury. They don’t know what you can and can’t recall.” Sept. 14 Deposition, Tr. 42:12-13. She then reiterated to the Select Committee, “[H]e didn’t tell me to lie. He told me not to lie.” Id. 42:20-21
The allegedly defamatory part of the tweet
Hunt also is Cassidy Hutchinson’s good lawyer (not the one who coached her to lie)…
Plaintiff alleges
Mr. Passantino alleges that Mr. Weissmann’s post “deeply damaged [his] 30-year reputation and caused him to lose significant business and income.” Id. ¶ 21. Prior to the allegations surrounding his representation of Ms. Hutchinson, Mr. Passantino had “never been accused by a client, or anyone else, of unethical or illegal behavior.” Id. ¶ 8
Governing law
Deciding whether a statement implies verifiably false facts or instead an opinion is a question of law. See Farah, 736 F.3d at 534-35. In conducting this inquiry, the “publication must be taken as a whole, and in the sense in which it would be understood by the readers to whom it was addressed.” Id. at 535 (quoting Afro-Am. Publ’g Co. v. Jaffe, 366 F.2d 649, 655 (D.C. Cir. 1966) (en banc)). Consistent with District law, the D.C. Circuit has adopted a four-factor test to determine whether a statement implies a verifiably false assertion of fact or is a nonactionable opinion. Courts must consider: (1) “the common usage or meaning of the allegedly defamatory words themselves,” (2) “the degree to which the statements are verifiable,” (3) “the context in which the statement occurs,” and (4) “the broader social context into which the statement fits.” Ollman v. Evans, 750 F.2d 970, 979-84 (D.C. Cir. 1984) (en banc); see Myers v. Plan Takoma, Inc., 472 A.2d 44, 47 (D.C. 1983). There is no set order or hierarchy to these factors. Ollman, 750 F.2d at 980 n.17 (“We do not . . . suggest that the four-factor analysis is to be undertaken in a rigid lock-step fashion . . . [A] logical starting point . . . may be the broad social context or . . . the language surrounding the challenged statements[.]”).
Actionable
Nothing about the surrounding context suggests that the reference to Mr. Passantino’s “coach[ing]” Ms. Hutchinson “to lie” is facetious or sarcastic. It presents neutrally, nestled between a statement of opinion and a statement of fact. Mr. Weissmann contends that because the challenged statement follows a statement of opinion, it must also be an opinion, especially because it comes in the form of a parenthetical. ECF No. 15, at 10. Mr. Passantino takes the opposite view, arguing that the challenged statement must be a statement of fact because it is followed by a statement of fact. ECF No. 13, at 13-14. Given how short the full statement is, the court cannot divine much from the contested language’s location to determine whether it is presented as a subjective thought or a verifiable fact.
…the court concludes that the overall analysis of the Ollman factors suggests that his statement was not a subjective opinion.
(Mike Frisch)