Abbas v. Foreign Policy Group DC Circuit Panel

The DC Circuit has announced that the Abbas v. Foreign Policy Group appeal will be heard on October 20, 2014 before Circuit Judges Kavanaugh, Srinivasan, and Senior Circuit Judge Edwards. For the background facts giving rise to the case, the proceedings in the district court and the issues on appeal, see my posts here, here, here, here, and here.  For now, however, I thought I would take a quick look at prior defamation/libel/First Amendment decisions involving these judges.

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David v. Goliath in DC Superior Court

A “David versus Goliath” battle is playing out in the DC Superior Court, with the DC anti-SLAPP statute in the role of the slingshot.

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Evidence That Defending a Libel Suit = Big Dollars

When it enacted the DC anti-SLAPP Act, the DC Council recognized that SLAPPs “have been increasingly utilized over the past two decades as a means to muzzle speech or efforts to petition the government on issues of public interest.” The Council explained that “the goal of the litigation is not to win the lawsuit but punish the opponent and intimidate them into silence” because “defendants of a SLAPP must dedicate a substantial amount of money, time and legal resources.”

As we pass the three-year anniversary of the effective date of the DC anti-SLAPP Act, we now have a more precise picture of exactly how much “money, time and legal resources” SLAPPs actually cost. 

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Doctor’s Slapp at Yelp Reviewer Largely Dismissed by DC Superior Court

Yelp, and websites like it, have certainly added to the development of law in the First Amendment area. The Virginia Supreme Court is poised to decide the standard for unmasking anonymous commentators on websites like Yelp.  Last month, a Texas law firm filed a defamation suit against a former client over his Yelp review; stay tuned for the likely anti-SPAPP motion there.

Which brings us to Dr. Akl and his former patient, John Kandrac. Kandrac visited Alk’s Washington Travel Clinic, and had a poor experience.  He posted a review to Yelp in which he gave Akl one star (out of five), complained about being kept waiting for his appointment, that he had received another patient’s information in error, and about Akl’s bedside manner. 

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PissedConsumer.com SLAPPs Back

From the land of Wayne Newton and Brittney Spears comes news of an interesting lawsuit implicating the Nevada anti-SLAPP statute.  Techdirt.com explains that the lawsuit, Opinion Corporation d/b/a PissedConsumer.com v. Nevada Corporate Headquarters, came after Nevada Corporate Headquarters twice sued Opinion Corporation, which runs the website PissedConsumer.com (which, as its name suggests, allows consumers to complain about companies).

According to the complaint, Nevada Corporate Headquarters’ first lawsuit was dismissed because of 47 U.S.C. § 230.  (Section 230 of the Communications Decency Act protects websites against libel suits for otherwise defamatory comments/statements made on the website, as long as the website owner had no role in the creation of the allegedly libelous statements).

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Could the DC Circuit Decide the Abbas Appeal While Avoiding the “Erie” Issue?

I have previously explained that Yasser Abbas’s appeal from the district court’s decision, granting the defendants’ anti-SLAPP motion, will likely force the DC Circuit to decide whether the DC anti-SLAPP statute applies in federal court (“the Erie issue”) because, unlike the Sherrod appeal (which also involved timeliness issues) and the Farah appeal (in which the motion to dismiss was also granted under Rule 12(b)(6)), the Abbas complaint was dismissed only under the DC anti-SLAPP statute and there are no other potentially dispositive issues (e.g., timeliness).

As such, the threshold question of whether the statute applies in federal court might be outcome determinative.  For this reason, Abbas’s opening brief squarely attacks the proposition that the statute applies in federal court, arguing that it can not because it directly conflicts with the Federal Rules of Civil Procedure. 

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DC Court of Appeals Holds that Denial of Motion to Quash Under DC Anti-SLAPP Statute Is Immediately Appealable

Yesterday, in its first decision interpreting the DC Anti-SLAPP statute, the DC Court of Appeals (DC’s highest court) held that:

-           the denial of a special motion to quash under the statute is immediately appealable under the collateral order doctrine; and

-           a party making a motion under the DC anti-SLAPP statute does not need to disprove, in the first instance, that it was not commercially motivated.

(For background on the Burke v. Doe case, see here).

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Fourth Federal Court Judge Holds That DC Anti-SLAPP Statute Can Be Applied in Federal Court

Another DC federal court judge recently held that the DC anti-SLAPP statute applies in federal court, and applied it to dismiss a libel and related torts action.  This decision, in Forras v. Rauf, means that four DC federal district court judges have held that the DC  anti-SLAPP statute applies in federal court, while one has held that it does not. 

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Abbas Appeal Will Likely Force DC Circuit To Decide Erie Issue

Unless something unexpected happens, the Abbas v. Foreign Policy Group appeal will force the DC Circuit to expressly decide whether the DC anti-SLAPP statute applies in federal court (the so-called “Erie” issue).  (For background on the defendants’ anti-SLAPP motion, see this post; for a summary of Abbas’ opposition, the District of Columbia’s amicus brief and the defendants’ reply brief, see this post; for an analysis of the District Court’s decision, see this post).

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Checking in on Michael Mann’s Libel Suit

When we last wrote about Michael Mann’s libel suit against National Review, Competitive Enterprise Institute, and two individual defendants, the DC Superior Court had denied anti-SLAPP motions filed by all defendants.  Since that date, there have been several notable developments in the case, including an appeal to the DC Court of Appeals, a return to the DC Superior Court, and another upcoming appeal.  Here is what you might have missed: 

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