ATLANTA (CN) — An attorney for the son of a former Albanian president asked an 11th Circuit panel Thursday to revive his defamation lawsuit against the author and publisher of a book behind the 2016 film “War Dogs,” claiming they falsely accused him of being a mobster who engaged in corrupt arms dealing.
Arguing on behalf of Shkëlzen Berisha, the son of former Albanian President and Prime Minister Sali Berisha, attorney Jason Zoladz told the three-judge panel that statements about Berisha in Guy Lawson’s 2015 book “War Dogs” were untrue.
“Lawson falsified evidence of Berisha’s involvement with [defense contractor] AEY Inc., misrepresented the provenance of his allegations, asked a colleague if he could lie about evidence of Berisha’s involvement and literally invented details of a corrupt late-night rendezvous between Berisha and U.S. government officials, including imaginary details down to the color of the cars they drove and the content of their license plates,” Zoladz said.
The book — which was published by Simon & Schuster and became the basis for the 2016 film of the same name starring Jonah Hill and Miles Teller — tells the story of Efraim Diveroli, David Packouz and Alexander Podrizki, Florida residents and childhood friends who became international arms dealers.
Berisha sued Lawson, Diveroli, Podrizki, Packouz, Simon & Schuster, and Incarcerated Entertainment in Florida federal court in 2017 seeking $60 million in compensatory damages and an order forcing the publisher to remove the allegedly defamatory language from the book.
Berisha claims that scenes in Lawson’s book identifying him as an individual at the epicenter of two major arms-dealing scandals in Albania were falsified.
Berisha was allegedly embroiled in a controversy involving Diveroli’s company AEY Inc., a defense contractor that tried to sell Chinese ammunition acquired in Albania to the U.S. military for use in the War in Afghanistan.
Zoladz also argued Thursday that a magistrate judge “wrongfully refused access to critical evidence of actual malice” in the case in the form of “hundreds of communications withheld incorrectly on the basis of attorney-client privilege.”
The privileged documents were related to Simon & Schuster’s prepublication legal review of Lawson’s book.
The magistrate judge agreed with the publisher that communications between an attorney and Lawson were privileged because they were part of an effort to ensure any legal issues concerning the authenticity of information in the book were resolved before publication.
U.S. District Judge Marcia Cooke ruled in favor of the defendants in 2018, finding that Berisha qualifies as a public figure under the law.
According to Cooke’s opinion, one survey found that Berisha has an “astonishing” 100% name recognition among Albanians.
“It is clear that plaintiff is a public figure in Albania. His proximity to power, his access to the media and his alleged presence at the center of multiple corruption scandals all compel that finding,” Cooke wrote.
Arguing on behalf of Lawson and Simon & Schuster on Thursday, Elizabeth McNamara of Davis Wright Tremaine urged the panel to uphold Cooke’s order dismissing the case.
“Based on the undisputed and compelling report before it, the district court found no evidence that any defendant published the challenged statements with knowledge of falsity or any serious doubts as to its accuracy,” McNamara said. “The gist of the challenged statements that plaintiff was involved in corrupt Albanian arms deals and associated with mafia thugs had been widely reported for a decade before the book at issue was published.”
She said Berisha never challenged those reports.
McNamara also argued that the lower court did not abuse its discretion in finding that the defendants were entitled to attorney-client privilege.
“Attorney-client privilege applies to communications with third parties where the disclosure is in furtherance of the rendition of the legal services,” she said. “Lawson, per his publishing agreement, was required to cooperate fully with a legal review.”
But U.S. Circuit Judge Kevin Newsom, a Trump appointee, questioned whether Lawson could really qualify for attorney-client privilege because he was not an employee of Simon & Schuster.
McNamara argued that freelancers and independent contractors who are in possession of information that could inform prepublication legal analyses should be granted attorney-client privilege.
“To too formally and rigidly apply the privilege would put corporations in jeopardy of being unable to assess legal risks properly,” she said.
In rebuttal, Zoladz argued that Lawson did not satisfy any of the requirements for attorney-client privilege because he “possessed no decision-making authority on behalf of the company” and was not a client, employee, agent or contractor of Simon & Schuster.
Newsom was joined on the panel by U.S. Circuit Judge Beverly Martin, an Obama appointee, and Senior U.S. Circuit Judge Diarmuid O’Scannlain, a Reagan appointee sitting by designation from the Ninth Circuit.
It is unclear when the court will issue a ruling in the case.