WE Charity v. Canadian Broad. Corp.

679 F.Supp.3d 1

WE CHARITY, Plaintiff, v. CANADIAN BROADCASTING CORPORATION, Defendant.

Civil Action No. 22-340 (RDM)

United States District Court, District of Columbia

Signed June 27, 2023

Amy Lynn Neuhardt, Jonathan H. Sherman, Boies, Schiller & Flexner, LLP, Washington, DC, Brooke Anne Alexander, Pro Hac Vice, Joseph F. Kroetsch, Pro Hac Vice, Boies Schiller & Flexner LLP, Armonk, NY, Rodney A. Smolla, Pro Hac Vice, Rodney Smolla, South Royalton, VT, Sabina Mariella, Pro Hac Vice, Boies Schiller Flexner LLP, New York, NY, for Plaintiff.

Nathan E. Siegel, Courtney Turco DeThomas, Davis Wright Tremaine LLP, Washington, DC, Rachel F. Strom, Pro Hac Vice, Davis Wright Tremaine LLP, New York, NY, for Defendant.

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS, United States District Judge

The plaintiff in this case is a not-for-profit charity that seeks to foster "volunteerism in students" and to bring "education, clean water, healthcare, [and] food" to communities in Africa, Asia, and Latin America. Dkt. 1 at 9, 14 (Compl. ¶¶ 2, 16, 19). The charity "operates through a network of affiliated entities around the world"—which Plaintiff refers to as the "WE Organization"—including "in the United States, Canada, and the United Kingdom." Id. at 14 (Compl. ¶ 18). Plaintiff in this case is the U.S. affiliate, which is known as "WE Charity;" the Canadian affiliate, which confusingly was also known as "WE Charity," is in the "final processes of shutting down." Dkt. 28 at 53. Defendant Canadian Broadcasting Company ("[t]he CBC") is a Canadian radio and television public broadcaster owned by the Canadian government. Dkt. 1 at 15-16 (Compl. ¶¶ 20, 26).

Plaintiff brings this action against the CBC, asserting claims for defamation (Count I), breach of contract (Count II), promissory estoppel (Count III), and negligent misrepresentation (Count IV). Id. at 226-29 (Compl. ¶¶ 731-60). Each of these claims stems from news stories and promotions run by the CBC in late 2021 and early 2022 accusing the charity (without drawing any evident distinctions between the WE Organization entities) of making misrepresentations to donors and failing to deliver promised schoolrooms in Kenya. Id. at 9, 96-97 (Compl. ¶¶ 1, 3, 302).

Pending before the Court is the CBC's motion to dismiss the complaint for forum non conveniens and, in the alternative, to dismiss Counts II-IV for lack of subject-matter jurisdiction under the Foreign Sovereign Immunities Act ("FSIA"). Dkt. 16. For the foregoing reasons, the Court will DENY the CBC's motion to dismiss the entire case for forum non conveniens but will GRANT its motion to dismiss Counts II-IV for lack of subject-matter jurisdiction.

I. BACKGROUND

A. We Charity's Claims

The CBC asserts its forum non conveniens defense at the motion to dismiss stage, and, thus, the Court must "accept as true the allegations in the complaint and draw all reasonable inferences in [Plaintiff's] favor." Azima v. RAK Inv. Auth., 926 F.3d 870, 872 n.1 (D.C. Cir. 2019). But because the motion turns on factual issues that go beyond the pleadings, including disputed questions regarding foreign law and procedures, access to necessary evidence and compulsory process, the location and convenience of witnesses, and other practical problems, the Court can and must resolve those separate, disputed questions of fact. See, e.g., MBI Grp., Inc. v. Credit Foncier du Cameroun, 616 F.3d 568 (D.C. Cir. 2010). The Court will, accordingly, summarize the allegations contained in the complaint and, beyond that, will describe the parties' contentions respecting the relative convenience of the possible fora.

The Court must take a different approach, however, to resolving the CBC's motion to dismiss Counts II-IV for lack of subject-matter jurisdiction. Because that motion "challenges only the legal sufficiency of the plaintiff's jurisdictional allegations," the Court will "take the plaintiff's factual allegations as true and [will] determine whether [those allegations] bring the case within any of the exceptions to" foreign sovereign immunity "invoked by the plaintiff." Phoenix Consulting, Inc. v. Rep. of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000) (citations omitted). In addressing subject-matter jurisdiction, neither party relies on any facts beyond those alleged in Plaintiff's complaint, and so the Court will resolve that portion of the CBC's motion based solely on the adequacy of those allegations.

1. The Parties

"WE Charity" is a not-for-profit charitable corporation. Dkt. 1 at 14 (Compl. ¶ 19). "The original WE Charity entity was founded in Canada in 1995," id. (Compl. ¶ 17), by two brothers, Craig and Marc Kielburger, id. at 16 (Compl. ¶¶ 28-29). Today, "WE Charity operates through a network of affiliated entities around the world," including in the United States, Canada, and the United Kingdom, which the complaint refers to as the "WE Organization." Id. at 14 (Compl. ¶ 18). Those entities "put on domestic programming for students in their respective countries[ ] and raise funds to support international development projects." Id. Here, Plaintiff is the U.S.-based WE Charity, which is incorporated in New York and "registered in 37 states and the District of Columbia." Id. (Compl. ¶ 19). "WE Charity [that is, the U.S. entity] is the primary source of funding for the entire WE Organization," supporting both domestic programming in American schools and international development in various countries, including Kenya. Id. at 18 (Compl. ¶ 37); see also id. at 20 (Compl. ¶ 48) ("U.S. donors, through WE Charity, provide most of the funding for the WE Organization's development work."). Unfortunately, the complaint is imprecise in its use of the name "WE Charity," sometimes referring to the U.S. entity, at other times referring to the Canadian entity, and, perhaps most frequently, treating the two as indistinguishable. Where relevant, the Court will do its best to distinguish between these entities.

"The foreign country in which WE Charity funds the most charitable works is Kenya." Id. at 26 (Compl. ¶ 64). That work includes projects for primary and secondary schools owned and run by the local government, as well as projects run directly by the WE Organization in Kenya. Id. at 26-27 (Compl. ¶¶ 65-67). According to the complaint, the WE Organization has "funded the construction or renovation of 852 schoolrooms in Kenya." Id. at 27 (Compl. ¶ 68). "Robin Wiszowaty is WE Charity's Country Director for Kenya." Id. at 16 (Compl. ¶ 30). "She is employed directly by, and receives her paychecks from, the United States-based plaintiff in this litigation" and is an American citizen who resides in Michigan. Id. Carolyn Moraa (a.k.a. Carol), a resident of Kenya, is the Director of the WE Villages Projects in East Africa and oversees some additional projects. Id. at 16-17 (Compl. ¶ 31).

In 2020, a political scandal plagued the Canadian affiliate of the WE Organization, referred to in the complaint (at least at times) as "WE Charity Canada," resulting in the announced wind down of that entity. Id. at 28-29 (Compl. ¶¶ 77-82). In short, the Canadian government had awarded a project to WE Charity Canada. Id. at 28 (Compl. ¶ 78). Neither the Prime Minister nor the Finance Minister recused himself from that award decision, even though the Prime Minister "and members of his family had appeared at WE Days in Canada and in endorsements for WE Charity Canada and the Prime Minister's family members had been paid professional fees for certain appearances," and the Finance Minister's daughter previously worked for WE Charity Canada. Id. These revelations led to Parliamentary inquiries and WE Charity Canada's decision to return the government funds at a loss to the charity. Id. at 29 (Compl. ¶¶ 79, 81). In September 2021, due to the scandal and subsequent financial losses, "WE Charity Canada announced that it would wind down its operations and establish a foundation to provide sustainable ongoing funding for existing overseas projects and programs." Id. (Compl. ¶ 82).

The CBC is a Canadian public broadcaster owned by the Canadian government and organized as a "crown corporation." Id. at 15-16 (Compl. ¶¶ 20, 26). It hosts a variety of television programs, as well as radio shows, podcasts, websites, and social media accounts. Id. at 15 (Compl. ¶ 21). It also "distributes and licenses its broadcast content in the United States pursuant to various commercial distribution and licensing agreements with U.S. domestic broadcasting entities." Id. (Compl. ¶ 23). The CBC is headquartered in Ottawa, Canada, Dkt. 16-47 at 1 (Decl. of Catherine Perry ¶ 3), and has an office in Washington, D.C., Dkt. 1 at 15 (Compl. ¶ 24).

2. Alleged Defamation

The "CBC broadcasts a weekly, hour-long investigative news program called The Fifth Estate," which is "viewed by millions throughout Canada." Id. at 30 (Compl. ¶¶ 86, 88). The program is also available in the United States—by antenna reception for those near the Canadian border, by means of cable services in the Northern United States that offer it as a "channel option," and through online platforms. Id. (Compl. ¶ 89). According to Plaintiff, The Fifth Estate airs content similar to that carried on CBS's 60 Minutes program. Id. (Compl. ¶ 86). The Fifth Estate aired two episodes about WE Charity in 2021: one on February 4, 2021 ("February Episode"), and the second, which is at issue in this case, on November 18, 2021 ("November Episode"). Id. (Compl. ¶ 91). "Both episodes were hosted by Mark Kelley and produced by investigative reporter Harvey Cashore." Id. at 30-31 (Compl. ¶ 92).

In the February Episode, which is not directly at issue in this case, the CBC stated that "WE Charity told four donors they each had funded the 'entire' cost of the same 'borehole' constructed . . . in . . . Kenya." Id. at 32 (Compl. ¶ 99) (footnote omitted). The CBC supported that claim with donors' internet postings, but, according to WE Charity, none of those postings "stated the...