Trump Media Group Loses Lawsuit Against Washington Post, Over Allegations Related to SEC Disclosures

Today’s order by Judge Thomas Barber (M.D. Fla.) in Trump Media & Tech. Group Corp. v. WP Co. LLC grants summary judgment to the Post, and says that a full opinion will be forthcoming (presumably in some days or weeks). In the meantime, here’s the summary from the motion for summary judgment that the court granted:

On May 13, 2023, The Post reported that TMTG, a company founded by then-former-President Donald Trump, had received $8 million in loans from an obscure financial entity, ES Family Trust. The Post’s article (the “Article”) was part of its continuing business coverage regarding TMTG’s efforts to launch and fund a social media platform and followed two Post articles reporting on information disclosed by TMTG-co-founder-turned-whistleblower Will Wilkerson. The Article also reported that, based on internal TMTG documents Wilkerson provided, TMTG had agreed to pay and paid a $240,000 finder’s fee to Entoro Securities, a brokerage associated with the CEO of TMTG’s prospective merger partner, Digital World Acquisition Corp. (“DWAC”). According to the Article, neither the $8 million loan—which entitled ES Family Trust to company shares after the merger—nor the finder’s fee were disclosed to the Securities and Exchange Commission (“SEC”) or DWAC’s shareholders.

TMTG sued The Post for defamation, claiming the Article contained nine false and defamatory statements about TMTG. After three rounds of motions to dismiss, TMTG’s claim was narrowed to just two statements, both involving the finder’s fee. The operative Complaint claims that the Article’s statements that (1) TMTG “paid a $240,000 finder’s fee for helping to arrange the $8 million loan deal with ES Family Trust” and that (2) Entoro, a “brokerage associated with Patrick Orlando,” was the “recipient of that fee,” are false and defamatory because “TMTG never paid or agreed to pay a $240,000 ‘finder’s fee.'” In a passage that TMTG did not include in the Complaint, the Article also reported that “[i]n January 2022, Trump Media agreed to pay a cash referral fee—equal to 3 percent of the $8 million loans, or $240,000—to a Houston-based brokerage firm called Entoro Securities, according to a referral fee agreement and an Entoro invoice provided by Wilkerson.”

TMTG is a public figure and therefore must prove on summary judgment that a reasonable jury could find by clear and convincing evidence that The Post published the finder’s fee statements with actual malice. In other words, TMTG must show—well beyond a preponderance of the evidence—that at the time of publication The Post knew the finder’s fee statements were false or entertained serious doubts as to their truth. TMTG cannot satisfy that heavy burden.

Washington Post reporter Drew Harwell thoroughly investigated the Article before publication. He interviewed Will Wilkerson—an on-the-record source—who knew first-hand about TMTG’s financial dealings. Harwell also interviewed Wilkerson’s attorneys, who were giving information to government investigators on his behalf. He also reviewed internal TMTG documents and other documents Wilkerson attached to his SEC whistleblower complaint. And he contacted several sources to help him interpret the information he had collected.

As to the $240,000 referral fee specifically, Harwell’s telephone and inperson interviews of Wilkerson with his attorneys covered the topic, as did numerous documents that Wilkerson’s attorneys sent him. In all, they told Harwell repeatedly—both orally and in writing—that TMTG had agreed to Entoro’s finder’s fee and paid it. Harwell reviewed an invoice Entoro had sent TMTG for the fee and, later, an unsigned “Referral Fee Agreement,” which Wilkerson’s attorneys had located in his trove of whistleblower documents and which set out the terms for the fee. Harwell repeatedly spoke to Wilkerson’s attorneys and asked them to review a summary of the facts for accuracy before publication. He contacted TMTG, Entoro, and others eight days before publication to inform them of the article’s contents (including the agreement to pay the finder’s fee) and to offer an opportunity for them to comment. He followed up with TMTG when he did not hear back. Given this investigation, Harwell and his editor, Mark Seibel, had confidence in the Article’s accuracy at the time of publication.

A reporter need not engage in such a thorough investigation to dispel allegations of actual malice. What matters is whether there is clear and convincing evidence that the reporter actually knew, at the time of publication, that the statements were false or in fact entertained serious doubts as to the truth of those statements. And in this case, there is no evidence, much less clear and convincing evidence, that Harwell or his editors knew the finder’s fee statements were false. Instead, Harwell’s investigation rebuts any argument that the finder’s fee statements were made with actual malice. This Court should thus grant The Post summary judgment on TMTG’s defamation claim and TMTG’s conspiracy claim based on its defamation claim.