Holding that Michael Mann had shown enough to overcome anti-SLAPP motions filed by the National Review and Competitive Enterprise Institute, the DC Superior Court denied those motions in twin opinions issued last week. (For prior posts on the Mann suit, see here, and here).
The Court’s opinions (here and here) first find that the anti-SLAPP act applies to the challenged statements because they:
were made with respect to climate issues, which are environmental issues, thus an issue of public interest. In addition, the comments were made in publications (blogs, columns and articles) that were published to the public (available on online websites) thus the comments fit under the definition of an act in furtherance of the right of advocacy. Thus, the Court finds application of the Anti-SLAPP Act appropriate because the case involves the issues of climate change, clearly a topic of public interest.
Under the statute, having established that the “claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest,” the motion must be granted unless Mann “demonstrates that the claim is likely to succeed on the merits.” The Mann court holds that this requires Mann to “provide sufficient evidence to prove the probability of prevailing on the claim (outside of the allegations made in the complaint),” and expressly follows Judge Walton’s decision in Boley, which adopted California decisions on the applicable standard.
Turning to the claims, the Court finds that they are not protected opinion, but rather “conclusions based on facts.” Similarly, the Court rejects the defendants’ arguments that the posts were “rhetorical hyperbole,” finding that they “appear less akin to ‘rhetorical hyperbole’ and more as factual assertions. . . . The content and context of the statements is not indicative of play and ‘imaginative expression’ but rather aspersions of verifiable facts that Plaintiff is a fraud. At this stage, the Court must find that these statements were not simply rhetorical hyperbole.”
Next, the Court finds that the challenged statements were not protected by the “fair comment” privilege, and that there was evidence that the statements may have been made with actual malice that discovery might further develop. For all of these reasons, the Court holds that Mann has overcome the anti-SLAPP motion and companion 12(b)(6) motion.
According to this article in the Legal Times’ blog, one of the defendants said that it was considering an appeal. The article notes – correctly – that in a prior case, the DC Court of Appeals dismissed the appeal of the denial of an anti-SLAPP motion, stating that “the District’s anti-SLAPP statute does not provide for interlocutory review” and the order was “not appealable under the collateral order doctrine.” (You can read more about that case here). It will be interesting to see if these defendants identify an immediate path to the appellate court.