El Omari v. Buchanan

Background

Oussama El Omari sued James E. D. Buchanan, Dechert LLP, Andrew D. Frank, Neil Gerrard, Amir Ali Handjani, KARV Communications, Inc., Longview Partners (Guernsey) Ltd., and Intelligence Online. He alleged four claims: civil liability under the Racketeer Influenced and Corrupt Organizations Act (RICO), prima facie tort, defamation per se, and a civil claim under the Computer Fraud and Abuse Act (CFAA).

El Omari alleged that the defendants participated in a scheme to defame him and obtain confidential information. The alleged conduct included misleading filings under the Foreign Agents Registration Act, statements attributed to Buchanan during an October 2018 meeting, an article published by Intelligence Online, and communications with a person identifying herself as Samantha Alison. El Omari alleged that Alison was an impostor and an agent of the defendants who accessed his computer after communicating with him by email, telephone, and Skype.

The defendants named in the motion moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which permits dismissal when a complaint does not allege enough facts to state a legally plausible claim. The opinion also states that Intelligence Online failed to appear and that the court had previously granted El Omari a default judgment against it, but stayed that order while resolving the defamation claims against the other defendants.

RICO claim

The court dismissed El Omari’s civil RICO claim against the KARV defendants. A civil RICO claim requires, among other things, qualifying racketeering acts, a pattern of those acts, and an injury to business or property caused by the violation.

The court held that the alleged misleading Foreign Agents Registration Act filings could not serve as mail- or wire-fraud predicates because El Omari did not allege that he had a property interest in the regulatory approval involved. The court also held that the complaint did not plead facts connecting Alison to the KARV defendants; the allegations that she was their agent and that they conspired with her were conclusory. The alleged retaliation for El Omari’s cooperation with the Central Intelligence Agency also did not qualify because the complaint did not adequately allege that he provided information to a law-enforcement officer or that the KARV defendants knew about his cooperation.

The court further held that El Omari did not allege continuity because he did not establish even one qualifying predicate act and could not use a single alleged act to establish a pattern. Finally, his alleged interference with his livelihood was not a sufficiently specific or quantifiable financial injury, and he did not plausibly allege a direct causal connection between the defendants and any injury arising from Alison’s conduct. The RICO claim was therefore dismissed.

Prima facie tort claim

El Omari alleged that Buchanan and Longview committed prima facie tort through statements made at the October 2018 meeting. The court determined that North Carolina law applied because the alleged injury occurred where El Omari lived, in North Carolina, and because prima facie tort is a conduct-regulating claim. The court stated that North Carolina courts have not recognized prima facie tort as a separate cause of action, so it dismissed the claim.

The court added that the claim would also be dismissed under New York law because it was subject to New York’s one-year statute of limitations and duplicated the defamation claim.

Defamation claim

The defamation claim concerned Buchanan’s statements at the October 2018 meeting and statements in the Intelligence Online article. The court applied North Carolina law because El Omari lived in North Carolina when the alleged defamation occurred.

The court dismissed the meeting-based allegations as untimely under North Carolina’s one-year limitations period. As to the article, the court held that the amended complaint did not plausibly allege that any defendant made or supplied the challenged statements. The article did not attribute the statements to the defendants, and the complaint’s assertion that the defendants conveyed the information to Intelligence Online lacked supporting facts.

The court also held that the article’s statements about reported embezzlement and RAKIA’s belief that El Omari misappropriated funds were substantially accurate descriptions of existing allegations and were protected by the fair-report privilege. The court did not decide that the allegations were true. In addition, it determined that El Omari was a limited-purpose public figure because of his former position as Director and CEO of the Ras Al Khaimah Free Trade Zone Authority and his public discussion of the controversy. He therefore had to plausibly allege actual malice, meaning knowledge of falsity or reckless disregard for whether a statement was false. The complaint did not do so. The defamation claim was dismissed.

CFAA claim

El Omari’s CFAA claim was based on alleged unauthorized access to his computer under 18 U.S.C. § 1030(a)(4). The court applied the ordinary notice-pleading standard rather than the heightened fraud standard.

The court held that the complaint did not plausibly allege any relationship between Alison and the defendants. It also held that El Omari did not allege the type of computer-related loss required by the CFAA. The alleged value of the information disclosed to Alison, and the attorney fees and investigation costs raised in opposition to the motion, were not tied in the complaint to damage to or impairment of his computer.

Finally, the court held that exchanging emails, phone calls, and Skype communications did not by itself show that Alison entered El Omari’s computer system or any part of it. The complaint did not allege that Alison or any defendant bypassed a restriction or otherwise gained entry to the computer, its files, folders, or data. The CFAA claim was dismissed.

Disposition

The court ordered that the moving defendants’ motion to dismiss the amended complaint was GRANTED. The opinion does not state that the dismissal was with or without prejudice.