Tort: Journalist fails to dismiss defamation suit

Where a company and its founder plausibly alleged an independent blogger made false statements that were defamatory per se, and that the statements were made with actual malice, the journalist’s motion to dismiss was denied.

Tort

Yaacov Apelbaum is the founder of XRVision Ltd., a cybersecurity and analytics company. Plaintiffs Apelbaum and XRVision attracted media attention in 2020 for their role in examining Hunter Biden’s laptop computer.

Jordan Arthur Bloom is an independent journalist who maintains a blog on the platform Substack. On Jan. 29, 2024, Bloom published an article, “The Role of Yaacov Apelbaum in the Hunter Biden Drama,” which gave rise to the statements at issue in this suit.

In November 2024, plaintiffs’ attorney sent Bloom a cease-and-desist letter demanding he retract the article and apologize. On Nov. 23, 2024, Bloom both responded via letter and published another article on his blog reaffirming the first article’s statements and hyperlinking to the first article.

Plaintiffs has sued Bloom for defamation. Bloom has filed a counterclaim for tortious barratry. Both sides have filed motions to dismiss.

Per se

A statement is considered defamation per se if, among other things, it “prejudice[s] such person in his or her profession or trade.” Defendant argues that “identification as an Israeli spy is [not] inherently damaging to one’s reputation in business.” Keeping in mind that at this procedural juncture the court is obliged to assume the truth of plaintiffs’ factual allegations, plaintiffs’ assertions overcome any dispute as to the “inherent” reputational impact of these statements.

Damages

Next, defendants argue that plaintiffs failed to demonstrate “real damages.” However, defamation per se relieves a plaintiff of the requirement to show special damages. Because the court has found defamation per se, plaintiffs may recover compensatory damages for injury to reputation without demonstrating any financial loss. Plaintiffs need only plausibly allege that the effect of the statements is “incompatible with the proper conduct of the business, trade, [or] profession” of plaintiffs. The complaint adequately alleges as much.

Actual malice

Bloom next argues that plaintiffs have not adequately alleged he published the statements with the required intent. The standard of intent hinges on whether plaintiff is a limited-purpose public figure, as defendant asserts. But because plaintiffs have alleged that Bloom made his statements with actual malice, this court need not resolve at this juncture whether or not plaintiffs constitute public figures.

Contrary to Bloom’s claims, the complaint makes numerous allegations that go to actual malice: that “Bloom merely relied on tropes and his own pre-existing bigotry and biases, devoid of facts, and he knowingly sought to harm, and did harm, Plaintiffs,” that he “deliberately avoided conducting any investigation into Plaintiffs and made zero effort to contact Plaintiffs,” that he “has a history of writing anti-Semitic articles that accuse Jews and Israel of manipulating and/or controlling the U.S. government” and that his “publications and pattern of publishing are evidence that he conceived a storyline in advance of any adequate investigation and then consciously set out to insert Plaintiffs into his preconceived narratives as discussed throughout the Complaint.”

Anti-SLAPP

Under Virginia’s Anti-SLAPP law, Va. Code § 8.01-223.2, a defendant is immune from liability for statements regarding matters of public concern that would be protected under the First Amendment. However, this immunity does not extend to statements that the defendant “knew or should have known were false or were made with reckless disregard for whether they were false.”

In other words, immunity does not attach if a plaintiff has alleged actual malice. Because the court has already found that plaintiffs have alleged actual malice, Bloom’s Anti-SLAPP argument fails at this juncture.

Counterclaim

This court is not aware of—nor has Bloom pointed to—any Virginia precedent establishing a private cause of action for tortious barratry. It is true that the crime of barratry is statutorily recognized in Virginia. However, other jurisdictions have found that a private cause of action for barratry is not implied from a criminal statute. Furthermore, this court has recently held that barratry is not a tort under Virginia law.

Defendant’s motion to dismiss denied. Plaintiffs’ motion to dismiss counterclaim granted.

Apelbaum v. Bloom, Case No. 1:25-cv-00147, July 7, 2025. EDVA at Alexandria (Nachmanoff). VLW 025-3-279. 11 pp.