Instead, on June 6, he voluntarily dismissed his complaint and, the next day, the Court acted on the notice and closed the case. 

This is not the first time this has happened in this case.  As noted here, after this same plaintiff initially filed the Complaint in Virginia state court in September 2012, he then voluntarily dismissed it the next day. 

This dismissal, however, likely means the end of the lawsuit.  Under Federal Rule of Civil Procedure 41(a)(1)(B), a notice of dismissal is “without prejudice” (meaning that the suit can be refiled again).  The same rule provides, however that, “if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.” 

Interestingly, this is the second plaintiff who voluntarily dismissed a defamation lawsuit when faced with an anti-SLAPP motion.  In September 2011, Dan Snyder dismissed his suit after the City Paper filed an anti-SLAPP motion. 

This is the second anti-SLAPP motion that has been granted by a DC Superior Court judge, joining Lehan v. Fox.  An anti-SLAPP motion was denied by another DC Superior Court judge in Newmyer v. Huntington and anti-SLAPP motions are pending in two other DC Superior Court cases: Mann v. National Review and Campbell v. CGI Group.

The Payne court’s opinion first finds that the suit arose from protected activity because the challenged statements – about the alleged reasons why Mr. Payne was terminated by the District of Columbia – were made in connection with a pending lawsuit and on an issue of public interest (“actions by a government agency, a government official and a government employee’s conduct”).  Accordingly, it turns to whether Mr. Payne could show that he was nevertheless going to prevail on the merits. 

Interestingly, the Superior Court applied California’s “probability of success” standard of review because it found “no published decisions in this jurisdiction that have assessed the applicable standard of review.”   As readers of this blog are aware, the parties in several of the prior cases involving the DC anti-SLAPP statute have sparred over the standard of review.  Several of the parties opposing anti-SLAPP motions have argued that California’s probability standard applies:

• 3M’s argument at pages 15-16: “[g]iven the essential similarity of the ‘probability’ standards used in the California and Louisiana Acts to the D.C. Act’s ‘likely to succeed’ standard, the jurisprudence of those states is instructive,” and

• Mann’s argument at page 38: “[t]he sole difference between the California statute and the D.C. statute is that California uses the term ‘probability the plaintiff will succeed on the merits,’ whereas D.C. uses the term ‘likely to succeed on the merits.’  This is a distinction without a difference.”

On the other hand, anti-SLAPP movants have emphasized that DC’s selection of the term “likely” to succeed imposes a different, and heavy, burden:

• City Paper’s argument at page 23: “the D.C. Council chose to impose on plaintiffs like Mr. Snyder a burden unique among anti-SLAPP statutes.  To defendants’ knowledge, no other state employs in its statute a standard requiring a plaintiff to demonstrate that he or she is ‘likely to succeed on the merits,’’ and

• Competitive Enterprise Institute’s argument at pages 17-18: “[while] the Act was modeled on California’s anti-SLAPP statute, instead of requiring (as under California law) a ‘probability the plaintiff will succeed on the merits,’ it requires the plaintiff to show that he is ‘likely to succeed on the merits.’  Mann’s assertion that ‘this is a distinction without a difference’ denies all credit to the D.C. Council’s choice to depart from California’s approach in this one, crucial respect.”

Even under the less demanding “probability” standard of review, the court finds that Mr. Payne will not prevail on the merits. It holds that the challenged statements were privileged as a matter of law and that the privilege was not overcome or lost.  It also finds that the alleged statements “do not rise to the level of outrageousness to state a cognizable claim for [intentional infliction of emotional distress] and that the claim for “constitutional defamation” failed as a matter of law.

The case has an interesting procedural history.  The complaint was originally filed in Virginia in late September 2012, but was then voluntarily dismissed the next day.  It was then refiled in DC federal court on December 5, 2012, but not served until almost four months later.

The complaint alleges that, while he was an undergraduate student at the University of Virginia in 2004, the plaintiff had consensual sex with a woman, but that she then reported the encounter as a rape.  It alleges that the Commonwealth of Virginia, after investigation, decided against prosecuting the case, and that the plaintiff was twice cleared by the University of Virginia.

Notwithstanding the foregoing, it alleges that, in December 2011, The Hook magazine, which is owned by the defendant, published a story which mentions “Ofori specifically by name, and falsely portray[s] him as a criminal rapist and perpetrator of a sexual assault.”  The complaint has three counts: (a) libel; (b) false light; and (c) intentional infliction of emotional distress, and seeks compensatory and punitive damages in excess of $1 million and an injunction against further dissemination of the article. 

The defendants’ brief (which is in support of both its anti-SLAPP motion and companion 12(b)(6) motion), argues that the article in question was about the efforts of the alleged victim’s motion to “successfully petition both the Virginia legislature and the United States Department of Education to change how sexual assault and rape charges are handled on college campuses” and, as such, falls squarely within the anti-SLAPP statute because it is about an effort to petition the government on issues of public interest and about an issue under consideration or review by a legislative body.  Anticipating a likely Erie argument by the plaintiff, the brief argues that, because the anti-SLAPP statute confers substantive protections, it applies in federal court.  (It notes, however, that Judges Kozinski and Paez have urged reconsideration of this issue).

According to the defendant, when the article is viewed in its entirety, it does not suggest that the plaintiff committed sexual assault, but instead accurately reports on the entire proceedings, including the fact that the plaintiff was repeatedly cleared.  It argues that, even if the article did not report every fact in the official reports and proceedings, the plaintiff has not shown those facts would have changed the overall impression left by the article, especially given that it included the results of the various proceedings.  Additionally, most of the challenged statements are privileged because they are from official reports, the brief argues, which is another reason why the plaintiff is not likely to succeed on the merits.  Finally, the brief argues, the intentional infliction of emotional distress and false light counts are transparent attempts to “perform an end-run around a deficient claim for libel”.

An interesting question is whether the DC anti-SLAPP statute even applies to the complaint.  The allegedly defamatory article was published in the Charlottesville Virginia area, although it is available online.  The plaintiff was apparently attending the University of Pennsylvania at the time of the allegedly defamatory publication, although he now apparently resides in the District of Columbia.  Other than the fact he now lives in DC, there does not appear to be any other connection to the District.

DC federal courts generally apply an “interest analysis,” which considers where the plaintiff was domiciled, where he suffered injury by reason of loss of reputation, where the defendant is located and where the story was published.  Those factors would appear to suggest the application of Virginia or Pennsylvania law to the claims. 

That might be important because, as the District of Columbia observed in an amicus brief it submitted to the DC Circuit in the Sherrod appeal (page 28 n.1), “there is a . . . potential question as to whether the Act applies to claims arising under the laws of jurisdictions other than the District of Columbia.”  Similarly, the DC federal court in the 3M case stated that “it is blackletter law that if foreign law applies to define the scope of the tort, then the same foreign law also defines the scope of defenses to that tort.”

(Pennsylvania has a narrow anti-SLAPP statute that would not appear to apply to the suit while Virginia does not have an anti-SLAPP statute).

• he has adequately plead facts showing actual malice (and the defendants arguing that he has not);

• defendants are not entitled to the fair report privilege because some of the challenged statements were not based on official records (while they argue they were all based on court filings or official reports);

• the DC anti-SLAPP statute does not apply in federal court, as the 3M Court held (while the defendants argue that decision is an outlier that has not been followed by another DC federal court judge); and

• the reports on which the story was based were wrong, have never been challenged in court and have been disputed by numerous other Liberian government officials (while the defendants argue this is irrelevant under the fair report privilege).

The much more interesting issue, as least for a libel geek like me, is the parties’ disagreement over whether the suit was timely filed.  The defendants have argued that, because the allegedly defamatory articles were published in January and February 2010, and Boley’s suit was not filed until January 2013, it was not timely filed under DC’s one-year statute of limitations.  In response, Boley argues that the statute was tolled while he was detained for alleged immigration violations.

Under D.C. Code § 12-302(a)(3), “when a person entitled to maintain an action is, at the time the right of action accrues . . . imprisoned . . . he or his proper representative may bring action within the time limited after the disability is removed.”  Thus, in Von Kahl v. Bureau of Nat. Affairs, Inc., the court rejected the defendant’s argument that a libel claim was time barred because “the limitations period is tolled since plaintiff has been continuously incarcerated since the claims arose.”

In both its opening and reply briefs, the defendants argued that no DC court has held that “imprisoned” extends to immigration detentions.  They cited Cannon v. District of Columbia, where the DC Court of Appeals (the highest court in DC) held that parole was not “imprisonment” within meaning of D.C. Code § 12-302(a)(3) and that, “in order for the complaining party to toll the running of the statute of limitations on the ground of disability by reason of imprisonment, such party must be in prison.”

The defendants also argued that Boley litigated two cases while he was in civil immigration detention so that, even if his detention constituted “imprisonment” within meaning of the statute, he was certainly able to timely file his suit.  On this point, the Cannon court pertinently stated that it was “not persuaded that appellant in this case had ‘real disabilities’ from litigating while on parole, so as to toll the statute of limitations, given the fact that during the service of his first sentence in prison he was vigorously litigating in this jurisdiction, and after he was re-imprisoned under his second sentence he then filed this action.”

On the other hand, in Brown v. Jonz, which was not cited by either party, the same court held that “[a]lthough ‘imprisoned’ under D.C. Code § 12-302(a)(3) is not defined in the statute, the plain and ordinary meaning of this term is broad enough to encompass pretrial detention and other forms of confinement.”  While the defendant there argued that the statute should not be tolled because the plaintiff was able to litigate cases while incarcerated, the court rejected this argument:

[w]e are similarly unpersuaded by Jonz’s policy argument that the disability provision of D.C. Code § 12-302(a)(3) is inapplicable to Brown because he pursued his right to appeal his criminal conviction while in prison.  The fact that Brown was able to pursue the appeal of his criminal conviction while imprisoned does not establish the satisfaction of the purposes underlying the application of such a tolling provision.  The only condition for applying the tolling provision is that a person must be imprisoned when the cause of action accrues.

Ultimately the outcome of this narrow issue may be irrelevant because the defendants have moved to dismiss the complaint for several other reasons.  However, it will be interesting to see if the court rules on this issue.

The surprising statements came in last week’s opinion in Makaeff v. Trump University.  In that lawsuit, Ms. Makaeff brought a putative class action against Trump University, alleging that it engaged in deceptive business practices.  Trump University filed a counterclaim against Ms. Makaeff for defamation.  She moved to dismiss that counterclaim under California’s anti-SLAPP statute.  The federal district court held that the challenged statements arose from protected conduct under the statute, but that Trump University had demonstrated a reasonable probability of prevailing on the merits, thus defeating the anti-SLAPP motion.

Ms. Makaeff took an interlocutory appeal to the Ninth Circuit.  In an opinion written by Judge Wardlaw, that court agreed that the challenged statements arose from protected conduct.  It disagreed with the district court, however, on whether Trump has a reasonable probability of success on the merits because it held that: (a) Trump University was limited public figure; and (b) must thus show that the challenged statements were made with actual malice.  It remanded the case to the district court to “address the inherently fact-intensive question of whether Trump University has a reasonable probability of proving, by clear and convincing evidence, that Makaeff made her critical statements with actual malice.”  

Chief Judge Kozinski and Judge Paez concurred in the majority opinion because it was faithful to Ninth Circuit precedent, but wrote separately to express their opinions that the court’s prior decisions, holding that anti-SLAPP statutes could be applied in federal court, should be revisited. 

According to Chief Judge Kozinski, the main problem with the court’s prior decision holding that the California anti-SLAPP statute could be applied in federal court was its conclusion that the act was substantive.  According to Chief Judge Kozinski:

It’s not.  The anti-SLAPP statute creates no substantive rights; it merely provides a procedural mechanism for vindicating existing rights.  The language of the statute is procedural: Its mainspring is a “special motion to strike”; it contains provisions limiting discovery; it provides for sanctions for parties who bring a non-meritorious suit or motion; the court’s ruling on the potential success of plaintiff’s claim is not “admissible in evidence at any later stage of the case”; and an order granting or denying the special motion is immediately appealable.

Because state rules of procedure have no effect in federal court, according to Chief Judge Kozinski, “this is the beginning and the end of the analysis.  Having determined that the state rule is quintessentially procedural, I would conclude it has no application in federal court.” 

But he then went further.  Defendants in the DC anti-SLAPP cases have argued (here or here) that the anti-SLAPP statute can be applied in federal court because it can co-exist with the Federal Rules of Civil Procedure.  Chief Judge Kozinski disagreed with this reasoning, stating that it “vastly understates the disruption when federal courts apply the California anti-SLAPP statute.”  He writes that, while the Federal Rules of Civil Procedure provide a “logical order and pace” to cases, “[t]he California anti-SLAPP statute cuts an ugly gash through this orderly process” by allowing an early test of the complaint, reversing the applicable standards, authorizing the award of attorneys fees, and providing a right to interlocutory appeal. 

In conclusion, Chief Judge Kozinski noted that the panel was required to follow circuit precedent, but, “if this case or another case were taken en banc, we could take a fresh look at the question.  I believe we should.” 

Judge Paez wrote separately to echo the points made by Chief Judge Kozinski – “I agree that California anti-SLAPP statute is ‘quintessentially procedural’ and its application in federal court has created a hybrid mess that now resembles neither the Federal Rules nor the original state statute” – and to emphasize the confusion caused by various state anti-SLAPP acts on whether there is a right to immediate appeal. 

I suspect that Trump University will accept Chief Judge Kozinski’s invitation and move for en banc review.  Stay tuned.

First, they disagree on the burden imposed upon Mann to avoid dismissal.  The statute provides that, if the moving party satisfies the statute’s elements, the suit must be dismissed unless the non-moving party can show that it is “likely” to succeed on the merits.  

In their opening brief, the defendants argued that this “likely” standard “is a heavy burden, one unique among anti-SLAPP statutes.  To defendants’ knowledge, no other state employs in an anti-SLAPP statute a standard requiring a plaintiff to demonstrate that he or she is ‘likely to succeed the merits.’” 

Mann’s opposition brief counters that the DC anti-SLAPP statute is modeled on the California anti-SLAPP statute and that, under the California law, a moving party needs only to show that there is a “probability” of success on the merits, which the California courts have interpreted to require a summary judgment like procedure. 

In reply, the defendants argue that, while the DC statute was modeled on the California legislation, the DC Council made a conscious decision to require that one is “likely” to prevail instead of just having a probability of success, and that the “likely” standard imposes a “daunting burden” on Mann.  It seems to me that the defendants have the better of this argument because the different terms have different meanings, and it must be presumed the DC Council knew that and chose accordingly. 

Second, the parties disagree about whether the suit is the type contemplated by the anti-SLAPP statute.  Mann argues that, “[u]nlike a traditional SLAPP, there is no economic bullying here,” as evidenced by the fact that the defendants continue to write and talk about the subject of the lawsuit.  (This point echoes arguments made by another party resisting an anti-SLAPP motion (Huntington), and adopted by the DC Superior Court in denying an anti-SLAPP motion there). 

In response, the defendants point out that SLAPP suits impact both the named defendants and others in the jurisdiction, by chilling speech, and that defendants are “fully entitled to seek the protection of anti-SLAPP statutes notwithstanding their ability to continue to exercise their First Amendment rights.”  Once again, it seems to me that the defendants have the better of the argument.  While a certain type of David vs. Goliath suit certainly animated the DC Council’s enactment of the anti-SLAPP statute, it is not restricted only to those classes of defendants. 

Finally, the parties predictably disagree about whether the challenged statements are verifiable fact (and thus properly the subject of a defamation suit) or protected opinion/hyperbole (and thus incapable of forming the basis of a defamation suit).  Mann argues that the statements – including that he engaged in data manipulation and “has molested and tortured data” – are all easily verifiable.  While acknowledging that certain forums (e.g., “artistic commentary and review”) are relevant in determining whether certain statements are factual or opinion, Mann argues that the forum here is not the type in which hyperbole or opinion is expected to be found. 

The gravamen of the defendants’ reply brief is that the Mann opposition ignores the “context” in which the challenged statements were made.  They argue that a line of Supreme Court decisions show that the Court continues to consider the “context” in which statements are made, and that the forum is not limited to artistic commentary and review.  When considering the forum (a blog), the broader vigorous debate over global warming, and the language surrounding the challenged statements, the defendants argue that they are “clearly rhetorical hyperbole, phrased in colorful language, and not actionable assertions of fact.”  The defendants also persuasively argue that Mann has failed to plead facts showing that they acted with actual malice.

• Snyder v. City Paper (resolved when the plaintiff voluntarily dismissed the suit);

• Dean v. NBC Universal (dismissed as a sanction for the plaintiff’s refusal to pay the defendants’ fees in order to refile the suit in federal court; currently on appeal);

• Payne v. District of Columbia (libel suit arising out of statements about the termination of the plaintiff’s employment; an anti-SLAPP motion is pending);

• Campbell v. CGI Group, Inc. (the plaintiff alleges that defamatory statements by the defendants led to her termination as a DC employee; an anti-SLAPP motion is pending); and

• Mann v. National Review (the plaintiff alleges that the defendants libeled him in a blog post; an anti-SLAPP motion is pending).

And anti-SLAPP motions are currently pending in Abbas v. Foreign Policy Group and Boley v. Atlantic Monthly Group, in DC federal court.  

One of the interesting developments has been the type of defendants that have invoked the statute.  In the statute’s legislative history, the DC Council noted that a typical SLAPP suit involved “an effort to stop a citizen from exercising their political rights, or to punish them for having already done so.”  It cited an example provided by the American Civil Liberties Union of the Nations Capitol which involved an alleged retaliatory lawsuit by a developer against grassroots advocates who opposed his efforts.  The Reporters’ Committee for Freedom of the Press provides a similar example of neighbor vs. neighbor litigation as the reason why states should enact anti-SLAPP legislation.

In those cases in which defendants have filed anti-SLAPP motions (counting the two Dean v. NBC cases as one), however, the moving parties have included “established” media (NBC, Rachel Maddow, Fox Television, City Paper; Hearst Publications; National Review; a division of the Washington Post; The Atlantic); a relatively well-known blogger (Andrew Breitbart); a well known lawyer and consultant (Lanny Davis); and the District of Columbia.

This fact has not gone unnoticed by plaintiffs.  In responding to an anti-SLAPP motion made against him by Foreign Policy Magazine and its contributor, Yasser Abbas argued that “[n]either defendant was engaged in any kind of ‘grassroots activism’ when they defamed Plaintiff. . . ”.  And the Superior Court appeared to accept a similar argument in denying an anti-SLAPP motion made by Newmyer: “it suffices to note that there is no economic bullying here by Dr. Huntington, and his claims are not likely to deter Mr. Newmyer from being heard on his contentions.”

But the size or resources of the moving party should not affect the availability of the anti-SLAPP statute.  In fact, even outside the SLAPP statute context, courts have acknowledged that defamation suits can impose a burden on the press, draining resources that could otherwise go to stories, resulting in a chilling effect:

[t]he threat of prolonged and expensive litigation has a real potential for chilling journalistic criticism and comment upon public figures and public affairs.  Furthermore, the prospect of delay attendant upon any defamation trial, no matter how expeditiously handled, may inhibit the full and free exercise of constitutionally protected activities.

Myers v. Plan Takoma, Inc., 472 A.2d 44, 50 (D.C. 1983).

Indeed, in their reply brief, the defendants in the Abbas suit made exactly this point:

Plaintiff first suggests that these Defendants somehow fall out of the protection of the Anti-SLAPP act because they are not “normal,” “middle-class” Americans to which the statute should apply, but rather are “sophisticated people in the political arena.”  Opp. 1, 18-19.  Plaintiff’s implication that persons such as Dr. Schanzer or the editors of FP are abnormal and something other than middle class Americans, along with the suggestion that the statute’s reach depends upon that kind of stereotyping, is both troubling and devoid of any basis in law.  Nowhere does the Act state that its applicability is limited in any such way, and with respect to FP, courts have already applied the statute to media entities. . . .  In fact, the only criteria for invoking the statute is whether Defendants engaged in “an act in furtherance of the right of advocacy on issues of public interest.”  D.C. Code § 16-5502(a).

Further, while the DC Council highlighted the “typical” SLAPP suit, the legislative history makes clear that the concern animating the council was the use of lawsuits “to muzzle speech,” which require a defendant to “dedicate a substantial amount of money, time and legal resources” in defense, and thus “achieve their filer’s intention of punishing or preventing opposing points of view, resulting in a chilling effect on the exercise of constitutionally protected rights.”  The right to speak and publish belongs to all parties, irrespective of their size or wealth.

Additionally, it is possible that the data masks the fact that the DC anti-SLAPP statute is having its intended effect of reducing suits on matters of public interest.  For example, a recent case in Virginia, where a construction contractor sued a woman who made comments about her experience on a Yelp discussion board, appears to be the more “typical” type of suit contemplated by the DC anti-SLAPP statute.  In an article about the suit, the attorney representing the woman suggested that the suit was filed in Virginia to avoid application of the DC anti-SLAPP statute:

“I don’t think there is any question that if [the plaintiff Christopher] Dietz had to file this case in a jurisdiction with an anti-SLAPP law he would not have filed at all,” Levy said noting that Dietz did not file in his home district, Washington, D.C., where such a law exists.

To the extent that is accurate – that the more “typical” SLAPP plaintiff is avoiding DC because of the anti-SLAPP statute and its protections (including the awarding of fees to a moving party for a successful motion) – that might explain the above data. Nevertheless, the experience in DC with the anti-SLAPP statute got me wondering if it was an anomaly, or consistent with the experience in other jurisdictions.

In June 2011, Texas enacted an anti-SLAPP statute.  According to the wonderfully named slappedintexas.com and my own independent research, several of the cases have been “typical” SLAPP suits.  For example, successful anti-SLAPP motions were made by individuals sued by mortgage company for comments they made on online forum about the company, individuals sued over a Yelp review, the Better Business Bureau in response to a suit over a poor rating, individuals in a neighborhood who spoke out against a nightclub, and were sued by its owner, and an individual who accused a police officer of corruption.  An anti-SLAPP motion has also been filed in a suit where a company alleges that individual defendants defamed it when they asserted that it contaminated their water well with its nearby fracking operations and in a dispute between two neighbors over a domain name.

Interestingly, the Texas anti-SLAPP statute has been invoked in two suits involving political candidates: one where an individual alleged he was defamed in a campaign video by two candidates for State Board of Education, and the other where a candidate sued his opponent, alleging that her advertisement was libelous.

Like the District of Columbia, the statute has also been invoked by “established” media, including a newspaper sued by two men whose photos were erroneously distributed in connection with a robbery and a well-known medical journal which asserted a doctor’s study was fraudulent.

While it is interesting to note that the Texas suits to date have been more “typical,” I suspect that the DC experience will come to mirror that in other jurisdictions in the years ahead.

As I’ve written before, if Sherrod doesn’t resolve “the Erie question,” it is also teed up for the DC Circuit in Farah v. Esquire.  Stay tuned.

The defendants’ brief in support of their anti-SLAPP and Rule 12(b)(6) motions first chronicles Boley’s tenure as leader of the Liberian Peace Council, citing to and quoting from a U.S. State Department report on Liberian Human Rights Practices and the Liberian Truth and Reconciliation Commission to support its thesis that the articles were accurate.  The defendants also assert that Boley has a history of using litigation to attack critics. 

At their core, the defendants argue, the articles accurately described “official investigations into Boley’s war crimes” and “report widely available facts.”  Consequently, they argue, the defamation suit must be dismissed because it is barred by: (a) the one-year statute of limitations; and (b) the fair report privilege, which protects the reporting of official reports and proceedings.  They also argue that the Complaint does not plead facts in support of the required elements of falsity or fault, and should be dismissed for these additional reasons. 

Interestingly, the defendants’ brief first argues that dismissal is appropriate under Rule 12(b)(6) and, almost as an afterthought, argues that dismissal is also appropriate under the anti-SLAPP statute.  This is undoubtedly by design; rather than get into a protracted dispute over whether the DC anti-SLAPP statute applies in federal court (the so-called “Erie” issue from Sherrod v. Breitbart, Farah v. Esquire and Abbas v. Foreign Policy Group, LLC), the defendants are arguing that, even under the more generous Rule 12(b)(6) standard, the Complaint still fails to state a claim and must be dismissed.  This is the same strategy that Esquire has taken at the DC Circuit, arguing to that Court that “[t]he simplest basis on which to affirm the dismissal of Plaintiffs’ claims is under Fed. R. Civ. P. 12(b)(6).”

As alleged in the Complaint, a May 2011 post on Esquire’s politics blog contained fictional statements by publisher Joseph Farah that he would destroy the first-run print of Jerome Corsi’s book, Where’s the Birth Certificate? The Case that Barack Obama is not Eligible to be President; pull copies from bookstore shelves; and refund the purchase price to customers, all because he could no longer publish the book “in good conscience” after the release of Obama’s long-form birth certificate. (The blog post is still available here). 

After some convulsions in the Twitter-sphere, Esquire published an “update” an hour after the initial post to confirm that the Farah quotes were fictional.  Farah, his website and publishing company, and Corsi brought a claim that the invented quotes harmed their reputations and caused them economic damage in reduced book sales.  In dismissing the Complaint under both the DC anti-SLAPP statute and Rule 12(b)(6), the federal district court accepted the defendants’ argument that the post was political satire, not commercial speech, and thus protected under the First Amendment.

Although the 3M court had previously held that that DC anti-SLAPP statute was not applicable in federal court (the “Erie” issue), the Farah district court joined the majority of other federal courts and held that, because “[i]t was certainly the intent of the D.C. Council and the effect of the law – dismissal on the merits – to have substantive consequences,” the statute applied in federal court.  In his opening brief, Farah argues that this was error because the heightened pleading standard demanded by the anti-SLAPP statute conflicts with pleading standards under the federal rules, and so the federal rule must govern.  This argument sidelines Erie’s procedural/substantive distinction and highlights the Supreme Court’s Shady Grove language which asks whether the federal rule is broad enough to cover or answer the question.

Interestingly, Esquire’s opposition brief reminds the DC Circuit that it need not reach the Erie question because the Complaint was also dismissed under Rule 12(b)(6), and, if it cannot survive a 12(b)(6) motion, the higher anti-SLAPP burden is a moot point.  Esquire also cites to numerous decisions from other federal Circuits (including the First, Fifth and Ninth), applying anti-SLAPP motions in federal court, to frame the 3M decision as an outlier.

Two amicus briefs have been filed to date: one by a consortium of media entities and one by the District of Columbia.  The media brief argues that the Erie question is answered by determining if the federal rule and state law can co-exist.  They argue that they can, citing the 3M decision itself, among others, for ruling separately on the 12(b)(6) and anti-SLAPP motions (with separate outcomes).  The media brief also explains the value of anti-SLAPP motions to media defendants, including Dan Snyder’s dismissal of his lawsuit against the Washington City Paper, and argues that this value demands the application of the statute in federal court to assure the twin aims of Erie: equitable application of law and prevention of forum-shopping.

The media brief also adds a new wrinkle to the substantive vs. procedural debate.  It points out that the DC Council wields the legislative power to simply abolish the tort of defamation in the District, but opted for the scalpel over the axe to address a perceived problem with the substantive law in its “state.”  It then cites various federal decisions holding that state laws making litigation more difficult in general do not necessarily conflict with the Federal Rules.

The District of Columbia’s amicus brief is similar to the amicus brief it filed in the Sherrod appeal and the amicus brief it filed in the Abbas case pending in federal district court.  As such, I won’t repeat my discussion of it because you can find it here. 

Both of the amicus briefs do not address the question of whether the blog post was protected satire, leaving Farah and Esquire to spar on that issue.  Farah claims that  the post was a failed attempt at satire since a number of people apparently believed it.  According to Farah, the fictional quotes were circumstantially believable as fact, partly because of the “clues” Esquire gave that it was satire were too subtle for the reasonable person to pick up, and partly because Obama had released his long-form birth certificate the month before Corsi’s book was published.

Esquire counters that it was successful satire worthy of protection because protected satire contemplates and allows some duping of the public.  It cites the Supreme Court’s recognition in Milkovich that humor and satire are valuable tools of political debate and deserve protection, discusses famous satirical pieces – Jonathon Swift’s A Modest Proposal, available here, and Ben Franklin’s The Speech of Polly Baker, available here – and asks if we would be willing to censor those historic pieces because some readers were actually fooled.

After the district court granted the defendants’ motion, Farah’s lawyer, Larry Klayman, publicly criticized Judge Collyer’s decision.  He now asks the DC Circuit to set aside her decision on the basis that it was the product of judicial bias.  Farah cites her factual findings and certain language (use of the term “birther,” which Farah finds pejorative) about Obama’s eligibility for President as evidence of a prejudice towards his political views.  Farah returns to this argument in his reply brief, here. Esquire responded that a claim of judicial bias requires a motion for recusal or reconsideration, and Farah’s claim was not preserved for appeal as he failed to make such a motion.

Damien Smith, a George Mason law student and legal intern with LeClairRyan, authored this blog post.

A quick reminder on how we got here.  According to the Complaint filed by Campbell, Compass allegedly contacted her supervisor and stated that she was engaging in improper and unethical conduct, which led to her termination.  Campbell alleged that the true purpose of the communication was to remove her from her position (the Chief Operating Officer for the DC Department of Health Care Finance) because Compass viewed her as an obstacle to it securing lucrative contracts with the District of Columbia. 

Compass’s anti-SLAPP motion concedes that it spoke with the supervisor, but argues that it was because of its concern about Campbell’s possible improper and unethical behavior, which Compass argues is a “public interest” within meaning of the DC anti-SLAPP statute.  In response, Campbell argues that Compass’s only purpose in talking with her supervisor was to get its invoices paid, which, she argues, is a private, and not a public interest.

Compass’s reply brief argues, however, that the anti-SLAPP statute applies, irrespective of its motive, because the subject of the communication – alleged government corruption – is an issue of public interest:

Even if the communications solely pertained to private interests, the subject of the report is clearly an issue of public interest; the Anti-SLAPP Act applies to this lawsuit.  Communications about the existence of corruption and contract steering always have a strong element of public interest.

* * *

Assuming, arguendo, the Compass did have some private interest in reporting about Ms. Campbell’s activities, the reports still served the public interest by reporting of corruption and contract “steering.”  Accordingly, the communications are protected under the Anti-SLAPP Act.  Compass’s alleged communications advanced the interests of all District residents by exposing possible crimes and reporting possible corruption; they were not simply advertising or an attempt to secure payment as suggested by Plaintiff.

This disagreement, over what constitutes private interests, continued during last week’s hearing.  There, counsel for both sides acknowledged that, in the statute, “[t]he term ‘issue of public interest’ shall not be construed to include private interests, such as statements directed primarily toward protecting the speaker’s commercial interests rather than toward commenting on or sharing information about a matter of public significance.” 

Campbell’s counsel argued that, under that definition, Compass’s communications were purely private because, if its invoices had been paid on time, it never would have spoken with Campbell’s supervisor.  Compass’s counsel argued, on the other hand, that the fact the communications might have benefitted Compass was not relevant because the purpose was to report alleged government misconduct, which he argued was a quintessential public interest. 

The Court took the matter under advisement; I suspect we’ll get an opinion in the next month.

Payne argued in his opposition brief that the D.C. Council did not intend the anti-SLAPP statute to apply to suits by private citizens against government officials.  He noted that the D.C. anti-SLAPP statute was modeled after the California statute and cited D.C. and California cases stating that anti-SLAPP motions are generally used to protect the free speech of private citizens against frivolous claims brought by larger private interests. 

In its reply, the District seized on Payne’s use of California case law by citing a California Supreme Court decision holding that the California anti-SLAPP motion “extends to statements and writings of governmental entities and public officials on matters of public interest and concern that would fall within the scope of the statute if such statements were made by a private individual or entity.” Vargas v. City of Salinas, 205 P.3d 207, 216 (Cal. 2009).

Although Payne argued that granting anti-SLAPP protection to government officials and entities would chill the speech of private citizens, the District of Columbia again cited Vargas, which found that the legislative history of an amendment to the California statute suggests lawmakers were concerned about the chilling effect of SLAPPs on the speech of government officials.  The District of Columbia cites a December 2012 incident, in which Gandhi was allegedly reticent to testify openly to the D.C. Council’s Committee on Finance and Revenue because of Payne’s willingness to sue, as an example of why the anti-SLAPP statute applies here.  The District argued that Payne’s intent in filing suit is not relevant to the application of the anti-SLAPP motion – an argument made on this blog when Payne filed his opposition brief.

The remainder of the brief deals with whether any applicable privilege to Gandhi’s statements was overcome by Payne and whether, in any event, the challenged statements were false and defamatory. 

Damien Smith, a George Mason law student and legal intern with LeClairRyan, authored this blog post.

The threshold question in Sherrod is whether the denial of an anti-SLAPP motion is immediately appealable under the collateral order doctrine of Cohen v. Beneficial Loan Corp.  (The DC Court of Appeals recently held that it was not).  Under Cohen, the appellants must show that the order would be effectively unreviewable on final appeal.  In his opening brief, O’Connor cited a Ninth Circuit case finding that the California anti-SLAPP law grants defendants a right “in the nature of an immunity,” which justifies interlocutory appeal.  

Sherrod counters that the Ninth Circuit also found that the Nevada and Oregon anti-SLAPP laws did not provide the type of immunity requiring immediate appeal and argues that the relevant text of the California law authorizing immediate appeal is lacking in the DC law.  Therefore, she argues, DC must be grouped with Ninth Circuit decisions on the Nevada and Oregon laws and decisions by the Texas Court of Appeals, discussed here, denying immediate appeal.

O’Connor admits that the DC Code lacks explicit language, but argues the DC Council intended to grant defendants an absolute or qualified immunity from standing trial against meritless defamation claims similar to the qualified immunity granted to government officials in § 1983 claims – which the Supreme Court has found to be an issue immediately appealable as a collateral order.  He cites legislative history suggesting the DC Council intended to create immunity from meritless claims, and also supported immediate appeals from an unsuccessful motion, but did not provide for immediate appeal for fear that it would violate the Home Rule Act.

After quoting a DC Council committee report, which stated that the purpose of the statute is to provide defendants with substantive rights to avoid a “costly and long legal battle,” O’Connor argues that this purpose would be defeated if defendants could not appeal denial of the special motion to dismiss until after trial.  (Both the ACLU/Public Citizen and the DC amicus briefs argue that the statute provides immunity from suits). 

On the other major issue presented by Sherrod – the Erie question of whether the anti-SLAPP statute applies in federal court – Sherrod’s opposition brief argues the proper Erie analysis is not whether the state law and federal rule directly conflict, but whether the federal rule answers the same question as the state law.  Noting that O’Connor used the same arguments in his 12(b)(6) and anti-SLAPP motions, she argues that Federal Rule 12 and the anti-SLAPP motion answer the same question and so the federal rule must control.

As readers of this blog know, the Sherrod appeal presents two other issues: (a) whether the statute applies to a suit brought before its effective date; and (b) whether the anti-SLAPP motion was timely made. 

On the “retroactivity” issue, Sherrod’s opposition brief responds directly to O’Connor’s assertion that courts apply the law in effect when the motion is made and that Sherrod’s legal rights are not affected because the statute does not alter the substantive law of libel by arguing that the statute did change the rules because, when she pled her claim, she did not have to show a likelihood of success to survive a motion to dismiss and would not have had to pay defendants’ costs if she lost.

Finally, on the timeliness issue, Sherrod argues that, although the defendants received two extensions in which to respond to the Complaint, neither she nor the district court could have understood the March 15 extension to include an anti-SLAPP motion because the law was not effective until March 30.  In reply, O’Connor argues that the court’s orders were sufficiently broad to include all motions and that the district court and Sherrod could not have been ignorant of the soon-to-be-effective anti-SLAPP law.

Damien Smith, a George Mason law student and legal intern with LeClairRyan, authored this blog post.

A quick summary of how we got here.  On May 12, 2011, Arthur Newmyer filed suit against The Sidwell Friends School and James Huntington.  The suit received a lot of media attention (for example, see the New York Times article here, the Washington Post article here, and the Slate article here) because Newmyer alleged that Huntington, while employed by Sidwell as a psychologist, had an “open sexual relationship with” Newmyer’s wife, while, at the same time, allegedly treating Newmyer’s minor child, who attended the school.  It alleges that this had a significant effect on the minor child. 

Approximately 6½ months later, Huntington filed a counterclaim for defamation, false light, tortious interference with contract, and intentional infliction of emotional distress. Huntington alleged that Newmyer and his wife had agreed that they would live apart as if they were single and unmarried; that Newmyer’s wife was thus able to become involved with Huntington; that Huntington had never rendered care to Newmyer’s child; but that Newmyer had made the allegations against Huntington “for the purpose of annoying, harassing, interfering with and harming his estranged wife.” 

Newmyer responded to the counterclaim by filing a Rule 12(b)(6) motion to dismiss, arguing that:

•           the counterclaim was time barred because it was filed beyond the applicable statute of limitations;

•           the defamation claim was not pled with the required specificity;

•           the allegedly defamatory statements were privileged as a matter of law because they were made to the Sidwell Board of Trustees and licensing boards; and

•           the allegedly defamatory statements were not capable of being proven true and thus could not support a defamation claim.

In a companion anti-SLAPP motion, Newmyer argued that the counterclaim was subject to the anti-SLAPP statute because it arose from an act in furtherance of the right of advocacy on issues of public interest.  Newmyer specifically argued that the challenged statements were made in connection with “an issue under consideration or review by a legislative, executive, or judicial body, or other official proceeding authorized by law” because it involved issues that were now pending before the DC Superior Court.  Newmyer argued that, independently, the statements were made to the public about an “issue of public interest,” which he described as a school’s protection of its students.  Because Huntington could not show that he was likely to prevail on the merits (for the reasons in the 12(b)(6) motion), Newmyer argued that the court should grant the anti-SLAPP motion. 

(Newmyer’s anti-SLAPP motion also stated that it “appears to be the D.C. Superior Court’s first opportunity to rule on the merits of” an anti-SLAPP motion.  In fact, by February 2012, when the motion was made, the DC Superior Court had already granted the anti-SLAPP motion in Lehan v. Fox). 

In response, Huntington argued that the anti-SLAPP motion was untimely because, while the counterclaim was filed on December 30, 2011; and the statute requires an anti-SLAPP motion to be made within 45 days, or February 13, 2012; Newmyer’s anti-SLAPP motion was not made until February 29, 2012.  Huntington argued that this 45-day deadline could not be extended by the parties because it was jurisdictional.  Huntington also argued that the counterclaim was not a SLAPP; that any disagreement between the parties was purely private and not an “issue of public interest”; and that he was likely to prevail on the merits.  Huntington asked the Court to award fees and costs, which, under the statute, are available only if the court “finds that the motion was frivolous or is solely intended to cause unnecessary delay.” 

Newmyer’s reply brief argued that the 45-day deadline was not jurisdictional and that his anti-SLAPP motion was timely because the deadline to respond to the counterclaim was twice extended by Huntington and the motion was filed before the expiration of the second extension.  It then repeated the arguments from his opening brief about how the statute applied to the suit and why Huntington was unlikely to prevail on the merits. 

Huntington’s surreply brief argued that, while he extended Newmyer’s time to file a responsive pleading, the anti-SLAPP motion was not a responsive pleading(!), but a “statutorily created substantive right” that “cannot be extended beyond the statutory time requirement by agreement of the parties.”  Huntington also repeated the arguments he made in his opposition brief.  He emphasized, again, that the suit was not the type contemplated by the DC Council when it enacted the anti-SLAPP statute:

it is clear that Dr. Huntington is not seeking to chill or repress constitutionally protected speech, but is simply seeking to redress wrongs created by the unfounded and hateful claim filed by Dr. Newmyer. . . .  Unlike a traditional SLAPP suit, there is no economic bullying here, and Dr. Huntington is certainly not a “large private interest aiming to deter common citizens from exercising their political or legal rights.” 

On May 22, 2012, the DC Superior Court denied the anti-SLAPP motion and awarded Huntington attorney fees.  On the timeliness issue, the court held:

[t]he court agrees that this special motion to dismiss is untimely filed and can be denied for that reason alone. . . .  Nevertheless, if the court viewed Dr. Huntington’s counter-suit as a purely strategic effort to silence Mr. Newmyer, or to punish him for exercising his right to bring his lawsuit, the court might very well conclude that the ameliorative purpose of the Act requires a more flexible interpretation of the forty-five day framework. 

Much more relevantly, the court appeared to hold that the case was not subject to the anti-SLAPP statute because there was no evidence that it was brought for an improper purpose:

there is no other indication that this is a claim designed to silence or punish one for speaking out on issues of public importance.  Without engaging in an analysis of whether Mr. Newmyer’s lawsuit extends to matters of importance to the public or whether Dr. Huntington is a public figure, it suffices to note that there is no economic bullying here by Dr. Huntington, and his claims are not likely to deter Mr. Newmyer from being heard on his contentions. . . .

Of course, the statute is available to any litigant, rich or poor, who can assert its substantive protection to shield against harassing lawsuits; however, it is incredulous that Mr. Newmyer would view Dr. Huntington’s defamation counter-claim as an offensive weapon of intimidation.  It is not clear that the special motion to dismiss was filed for purposes of delay, but it is clear that the special motion is baseless and, therefore frivolous.  Dr. Huntington may therefore submit a proposed order for attorney’s fees along with an accompanying memorandum that explains how the fee was calculated. 

As you might expect, Newmyer appealed the denial of his anti-SLAPP motion to the DC Court of Appeals.  (On June 6, the Superior Court granted and denied the 12(b)(6) motion to dismiss in part, finding that the defamation and false light claims were time barred, but holding that the tortious interference with contractual relations and intentional infliction of emotional distress counts were timely made and stated a claim). 

On June 23, 2012, Huntington moved the DC Court of Appeals to dismiss the appeal as an inappropriate interlocutory action.  Huntington argued that the Superior Court’s May 22, 2012 Order was not a final order capable of being appealed because it did not terminate all the proceedings in the Superior Court.  He also argued that the Superior Court never certified its order for interlocutory review and that the collateral order doctrine did not provide a basis for the Court of Appeals to review the order.

Newmyer opposed the motion to dismiss.  He argued that the Superior Court had inappropriately denied the anti-SLAPP motion by considering whether “Huntington’s subjective motives in filing the Counter Complaint were proper, and/or because Mr. Newmyer may prove difficult to intimidate.” Newmyer also argued that the Superior Court erred in deciding the anti-SLAPP motion without a hearing and that the 45-day deadline was not jurisdictional. 

Newmyer argued that the appeal was appropriate under the Cohen collateral order doctrine.  According to Newmyer, the issues to be resolved were distinct from the issues in the “main case”; the Superior Court’s Order could not be resolved after final judgment because the purpose of the anti-SLAPP act was to protect parties from the burdens of litigation; and the order implicated a substantial public interest. 

On December 5, 2012, the DC Court of Appeals dismissed the appeal in a per curiam order:

ORDERED that appellee’s motion to dismiss is granted and this interlocutory appeal is hereby dismissed.  The subject order is not appealable under the collateral order doctrine, see Cohen v. Beneficial Loan Corp., 357 U.S. 541, 546 (1947), and the District’s anti-SLAPP statute does not provide for interlocutory review.  See, e.g., Englert v. MacDonnell, 551 F.3d 1099 (9th Cir. 2009). 

Three issues in this case have potential consequences for the other anti-SLAPP motions that are pending.  First, the question of whether an anti-SLAPP motion is timely made, when the time to respond has been extended by agreement, is pending before the DC Circuit in Sherrod v. Breitbart.  In his Statement of Reasons, Judge Leon held that the motion there was not timely made, despite an agreement between the parties.  With that decision and this one, parties need to make their motions in 45 days as there is a real possibility that any agreement to extend the deadline will not be sufficient.

Second, the Superior Court’s order appeared to deny the anti-SLAPP motion because it found that the counterclaim was not intended as “economic bullying.”  Several other parties have recently argued, in response to anti-SLAPP motions, that their lawsuits are not “traditional” SLAPP suits; this argument appears to have been accepted by the Newmyer court.  I would expect other parties to respond to anti-SLAPP motions with similar arguments, and it will be interesting to see if they gain any more traction from the courts. 

Finally, and most notably, the issue of whether there is a right to immediately appeal the denial of anti-SLAPP motion is squarely teed up in Sherrod v. Breitbart.  There, the appellants have also argued that the appellate court has jurisdiction pursuant to the Cohen collateral order doctrine.  In fact, Breitbart’s brief in opposition to Sherrod’s motion to dismiss the appeal; Breitbart’s opening brief at the DC Circuit; and the District of Columbia’s brief in opposition to the motion to dismiss the Davis appeal all made similar arguments and cited similar decisions as cited by Newmyer.  Now, however, the DC Court of Appeals has rejected that same argument.  Whether this portends doom for the appellants in Breitbart, or whether the DC Circuit reaches a different conclusion, remains to be seen.  It is, however, not a good development for the appellants in that case.

The Mann complaint is 24 pages long, and contains more than 100 paragraphs of allegations and assertions.  The gravamen of the suit is that Mann, who is allegedly “well known for his work regarding global warming,” (which would seem to make him a public figure requiring him to demonstrate actual malice), was allegedly defamed by a blog post that accused him of “academic and scientific misconduct.”  (Mann alleges that he had been previously investigated – and cleared).  The original post at issue, by defendant Rand Simberg, is here; the other post at issue, by defendant Mark Steyn, is here.  The complaint asserts claims for libel and intentional infliction of emotional distress. 

Not to be outdone, the anti-SLAPP brief runs 60 pages, with more than 28 pages of that submission chronicling the factual background against which the allegedly defamatory publications were made and the suit brought.  After that extended background section, the brief succinctly (and thankfully!) shows that, because the suit arises from an act in furtherance of the right of advocacy on issues of public interest (the blog post, commenting on the global warming debate and Mann’s role in it), the statute applies and requires dismissal of the suit unless Mann can show that he is likely to prevail on the merits.   (The brief is also discussed by the Volokh Conspiracy here)

From that, the remainder of the brief attempts to show that Mann cannot do so.  It first argues that the challenged statements are opinions and rhetorical hyperbole, and not actionable assertions of fact.  According to the defendants, the specific language used, the context and its lack of verifiability all confirm that the statements are not factual assertions and cannot be the basis for a defamation suit.  The defendants argue that in the “contentious and often acrimonious debate over global warming,” “forceful, highly opinionated language and hyperbole are not out of place; they are expected, from advocates on both sides.” 

They next argue that the allegation that Mann “tortured data” is not, and cannot be, an assertion of actual fraud because “the mind strains to imagine how one might literally molest or torture a datum.  By contrast, opinionated criticism of statistical analysis is regularly couched in such terms as contained in the challenged statement.”  According to the defendants, “[s]uch criticism amounts to disagreements over assumptions and methodology – that is, matters of opinion on what constitutes good science and solid statistical technique – not an accusation of literal fraud, e.g., making up data.” 

Similarly, the defendants argue the allegation that Mann engaged in “data manipulation” is not actionable because it “is commonly used to refer descriptively to the practice of statistics.”  As for the third challenged statement (that Mann was “the posterboy of the corrupt and disgraced climate science echo chamber”), the defendants argue that this is opinion, comprised of rhetorical hyperbole, and cannot reasonably be read in its literal sense.  As for the remaining challenged statements, the defendants argue that they are either not about Mann (but rather about Penn State’s alleged shoddy investigation) or are protected opinion. 

One of the more persuasive arguments in the brief comes next, when the defendants argue that, because the blog post links to the factual material that it references, there can be no defamation because the reader is free to consider the source material and draw his/her own conclusions.  Finally, argue the defendants, the language and context of the blog post would not be understood by a reasonable reader as accusing Mann of an actual crime, but rather would be understood as protected hyperbole.  In a nice touch, the defendants cite from Mann’s own book – where he allegedly likened the climate debate to “war,” as an example of hyperbole because “reasonable readers would understand that Mann is not engaged in a literal ‘war.’” 

In a companion Rule 12(b)(6) memorandum, the defendants argue that, for all of the foregoing reasons, the suit should be dismissed.  They further argue that Mann has failed to allege facts to support a finding that they acted with actual malice and, instead, offers only conclusory allegations that they acted “maliciously” or “with actual malice,” and that, for this additional reason, the complaint must be dismissed.

Last month, Abbas filed his opposition to the defendants’ anti-SLAPP motion.  (On the same day, Abbas filed a separate opposition to the defendants’ 12(b)(6) motion).  As I predicted, Abbas’ opposition primarily argues that the anti-SLAPP statute is inapplicable in federal court, relying almost entirely on Judge Wilkins’ decision in 3M v. Boulter. 

The opposition first argues that the suit is not the type of “grassroots activism” that was contemplated when the DC anti-SLAPP statute was enacted.  While this may be an accurate statement, it is beside the point because, if the requirements of the statute are satisfied, it applies. 

Realizing this, the majority of the opposition is devoted to arguing that the statute cannot be applied in federal court.  Repeatedly citing and quoting from the 3M decision, Abbas argues that the DC anti-SLAPP statute cannot be used in federal court because it is inconsistent with Rules 12 and 56 of the Federal Rules of Civil Procedure.  Abbas points to the fact that the anti-SLAPP statute allows the Court to consider material beyond the four corners of the complaint; to make an assessment of whether the plaintiff is likely to prevail; and dictates that dismissal must be with prejudice, as examples of how the anti-SLAPP statute conflicts with the Federal Rules of Civil Procedure. 

Abbas writes that Judge Wilkins’ decision is “devastating to [the defendants’] position” and notes that they “relegate[d]” it “to a footnote,” tacitly suggesting that the defendants avoided addressing it in their opening brief.  But Abbas then does the same thing, blithely dismissing Judge Collyer’s decision in Farah v. Esquire (which applied the anti-SLAPP statute in federal court) and Judge Leon’s Statement of Reasons in Sherrod v. Breitbart (which held that “defendants’ own briefs and the legislative history make clear that the DC Anti-SLAPP Act is substantive”), without any extended analysis or discussion.  As this brief will be Abbas’s only written submission on this issue, I was surprised it didn’t more squarely address these and the many other decisions that apply SLAPP statutes in federal court.   

The remainder of the opposition summarizes the reasons why Abbas is opposing the Rule 12(b)(6) motion and maintains that he is likely to prevail on the merits. 

Before the defendants filed their reply brief, the District of Columbia sought, and received, permission to file an amicus brief in support of the argument that the anti-SLAPP statute applies in federal court.  Its brief in Abbas is almost identical to the amicus brief it filed in the Sherrod v. Breitbart appeal.  It chronicles the Supreme Court and DC Circuit jurisprudence since Erie, arguing persuasively that both courts have consistently looked to apply state law in federal diversity actions by interpreting the state statutes in a way that does not conflict with federal procedural rules. 

It argues that, on those rare occasions where the state statutes have been held to conflict with federal procedural law, the conflict was unavoidable.  Against this landscape, the amicus brief argues, the DC anti-SLAPP statute can operate “side by side” with Federal Rules 12 and 56 and, as a consequence, applies in federal court.  It cites and extensively analyzes the decisions of the other federal circuit courts to decide this issue, including the First Circuit’s 2010 decision in Godin v. Schnecks.    

The brief then attacks the 3M decisions (both the February 2, 2012 Opinion in response to the Davis anti-SLAPP motion and the October 24, 2012 Opinion in response to the Boulter anti-SLAPP motion), arguing that the historical materials, “mid-20th century decisions,” and other precedent cited in that decision do not support its conclusion.  The brief is unsparing in its criticism of the 3M decisions, asserting that “Supreme Court precedent does not support the reasoning or conclusion of 3M,” “[a]s with the other authorities relied on in the 3M rulings, Byrd likewise does not support the conclusions reached there,” “contrary to the 3M decision’s intimation, Ninth Circuit precedent likewise does not support that decision’s conclusion,” “[t]he 3M decision’s secondary reason for refusing to apply the Act is likewise unpersuasive,” and stating that one of the reasons cited for the 3M decision is “flatly incorrect.” 

And it ends on a strong note, noting that one of the purposes of Erie is to avoid inequitable results and forum shopping, and that the opposite would happen if the anti-SLAPP statute was applicable in the DC Superior Court, but not in federal court:

if plaintiffs are subject to the heightened burden of proof set forth in the Act if they file their case in local court, but can avoid being subject to those standards if they file in federal court, that result will promote precisely the type of forum-shopping Erie was designed to avoid.

The brief notes that one plaintiff has already attempted to forum shop, and that this conduct confirms why the statute must apply in federal court.

The defendants’ reply brief echoes many of these points.  First, however, it addresses Abbas’s assertion that this suit is not the type contemplated by the DC anti-SLAPP statute (because it is not “grassroots activism”), arguing that this is irrelevant: “[n]owhere in the Act states that its applicability is limited in any such way, and with respect to FP, courts have already applied the statute to media entities. . . .  In fact, the only criteria for invoking the statute is whether Defendants engaged in ‘an act in furtherance of the right of advocacy on issues of public interest.’” 

On the initial issue of whether the anti-SLAPP statute applies in federal court, the defendants’ reply brief, like the amicus brief submitted by the District of Columbia, focuses on the federal appellate court decisions holding that state anti-SLAPP statutes can be applied in federal court without conflicting with Rule 12 and 56.  The brief also cites several federal district court decisions that resolved motions under SLAPP statutes and Rules 12 or 56 as evidence that the remedies can coexist, including the first 3M decision that, while denying the anti-SLAPP motion, granted a Rule 12(b)(6) motion.  Like the District’s amicus brief, the defendants’ reply brief argues that applying the statute in federal court furthers Erie’s aim of avoiding forum shopping and inconsistent results.

Turning to the merits, the defendants’ reply brief argues that Abbas’s opposition: (a) never showed that the challenged statements were false; (b) did not show that the challenged statements are not protected opinion; (c) confirmed that he is a limited purpose public figure; and (d) did not show that the defendants made the challenged statements with the requisite fault.  It makes the same arguments in its reply brief in support of its Rule 12(b)(6) motion.

The next step is for the court to rule on the pending motions.  Because the threshold question – of whether the SLAPP statute applies in federal court – is pending before the DC Circuit in the Sherrod v. Breitbart appeal, where oral argument is scheduled for March 15, 2013, one scenario is that the Abbas court waits for that decision.  (Of course, the Abbas court could also rule on the companion 12(b)(6) motion).

On the other hand, because the Sherrod appeal could turn on several other issues (including whether there is a right to appeal from the denial of an anti-SLAPP motion, whether the statute applies to a lawsuit filed six weeks before its effective date, and whether the anti-SLAPP motion there was timely made), there is no guarantee that a decision in Sherrod will resolve the Erie question.  And even if it does, there is no timetable for when the DC Circuit would issue such a decision.

On November 21, 2012, Jennifer Campbell, the former District of Columbia Chief Operating Officer for the Department of Health Care Finance, filed suit against three companies that she alleged made defamatory statements about her, which she alleges directly led to her termination by the District of Columbia. 

The complaint alleges that, in a June 11, 2012 column in the City Paper, it was reported that two of the defendants, who were allegedly in discussions to provide services to the District of Columbia in a multi-million dollar contract, alleged that Campbell had attempted to exert undue and improper influence over the contracting process, and that this led to her termination.  The complaint alleges that the statements were untrue, but that they were then repeated in other media outlets (see the Washington Post story here).

The complaint asserts a variety of legal theories, including defamation, intentional infliction of emotional distress, and intentional interference with contractual relations.  In addition to seeking compensatory damages, lost wages/benefits, and punitive damages, it demands “[a]n order directing Defendants to retract their false statements and publicly apologize to Plaintiff.”  (See further discussion of suit here).

Earlier this month, one of the defendants – Compass Solutions, LLC – moved to dismiss the suit under the anti-SLAPP statute.  (Notably, Compass is represented by the same firm that represented Richard Lehan, against whom an anti-SLAPP motion was successfully made).  Compass argues persuasively that the statements were made “in furtherance of the right of advocacy on issues of public interest” because they were made in connection with an issue under consideration by the executive branch and in connection with an issue of public interest (i.e., contracts under the Patient Protection and Affordable Care Act of 2010). 

Perhaps anticipating a potential argument from Campbell, Compass argues that, while the statute carves out issues of “private interest” from its coverage, which are defined as “statements directed primarily toward protecting the speaker’s commercial interests rather than toward commenting on or sharing information about a matter of public significance,” DC Code § 16-5501(3), the statements at issue here do not fall within this exception:

Compass’s statements to Director Turnage were not primarily directed toward protecting the speaker’s commercial interests, as they sought to aid Director Turnage to identify corruption and improprieties in his department and eliminate waste of public funds.  The statements related not just to performance of a contract that was already in place, but also a concern over how the Patient Protection and Affordable Care Act was being implemented.  Corruption in government contracting is always an issue of public concern. 

Turning to the merits of the claim, Compass first argues that none of the statements it allegedly made constitute defamation per se because they did not impute: (a) a serious criminal offense; (b) a loathsome disease; (c) a matter incompatible with Campbell’s business, trade, profession, or office; or (d) serious sexual misconduct.  Compass also argues that any statement it allegedly made was not defamatory because it did not make Campbell appear “odious, infamous or ridiculous.” 

I suspect that Campbell will focus her attention on this argument, and argue that the challenged statements arguably charged her with a serious criminal offense and, at a minimum, alleged conduct incompatible with her office (e.g., improperly steering contracts to favored companies).

Compass also argues that the defamation per se and the defamation counts fail because no statement in the June 11, 2012 column is directly attributed to Compass.  This is a potentially dispositive argument as the column reports only that: “Turnage also writes that he’d received an allegation that Campbell was trying to steer another contractor, Compass Consulting, toward a different potential partner, Cedrick Simon.”

Compass next argues that, while Campbell’s termination letter directly attributed statements to Compass, because these statements were accurate, no defamation claim can lie.  This argument is premature and should be rejected by the Court.  While Compass might be able to later prove that the statements were not false, that is not proper at this stage of the proceedings. 

Perhaps realizing this, Compass argues that, even if the statements were false, they were privileged and thus cannot be the subject of a defamation action.  According to Compass, it had a “common interest” to share the information with Campbell’s supervisor. (The “common interest” privilege generally protects defamatory statements that are made in good faith to an individual with an interest in the statement). 

Thus, argues Compass, because the statements were privileged, that privilege can only be overcome, and the suit allowed to proceed, if Campbell can show that the statements were made with malice.  Compass argues that the Complaint does not plead any facts showing that the statements were made with malice, and, in fact, the appended declaration of its owner confirms that they were not made with any malice.  (To be clear, the Complaint does allege that the defendants were “motivated by malice,” but there are no facts in support of this conclusory allegation, which is Compass’s point).

Unlike Dan Snyder and Bradlee Dean, who responded to anti-SLAPP motions by arguing that the SLAPP statute violated the Home Rule (here and here), Payne’s opposition does not attack the statute’s constitutionality.  Instead, Payne argues that the statute should not apply because he is not a well-heeled individual aiming to punish a private person, which, he argues, was the purpose of the statute.  While Payne’s description can be debated, ultimately it is irrelevant.  If the requirements of the statute are satisfied (i.e., does the suit arise from an act in furtherance of the right of advocacy on an issue of public interest), the statute applies.   

The defendants’ motion rested primarily on their assertion that any statements made by Gandhi were privileged as a matter of law:

because Mr. Payne was an employee of the Office of Chief Financial Officer, Dr. Gandhi’s official duties included informing the public about Mr. Payne and the circumstances of his departure, particularly after Mr. Payne had so vigorously inserted his own self-serving narrative directly into the public discourse.  Alternatively, Dr. Gandhi’s statements concerning the decision to fire Mr. Payne, which in itself was within Dr. Gandhi’s official duties.  Therefore, as in Moss, the statements here were made “in relation to” Dr. Gandhi’s official duties and are thus protected by absolute immunity for that reason as well. 

Payne responds by arguing that Gandhi’s statements were: (a) “ministerial” and thus not subject to any immunity (under DC law, if an official’s function is “ministerial,” there is no immunity; however, if it is “discretionary,” the immunity applies); or (b) made with malice, sufficient to overcome any privilege.  For both of these arguments, however, there is an absence of authority in the opposition showing why Payne is correct; instead, there is a lot of rhetoric about why he must be correct. 

The District of Columbia also argued that its motion should be granted because statements that Payne was fired for “poor performance” or for being a “very poor manager” would not be interpreted by a reasonable person to be defamatory of Payne.  This was the weakest point in its argument and Payne appropriately focuses on it in his opposition. 

(The District of Columbia also obliquely argued that Gandhi’s statements about Payne’s job performance were opinion; this was a potentially strong argument, but it was completely underdeveloped in the DC opening brief).

            •           Sherrod v. Breitbart:  The case drawing the most attention is the pending appeal in the United States Court of Appeals for the District of Columbia Circuit in Sherrod v. Breitbart.  There, the defendants/appellants have filed their opening brief; the District of Columbia has filed an amicus brief; Public Citizen and the American Civil Liberties Union of the Nation’s Capital have filed an amicus brief; and a consortium of news organizations have filed an amicus brief.  This case is likely to be the first opportunity for the Circuit court to address whether the DC anti-SLAPP statute applies in federal court, and whether there is a right to immediately appeal the denial of an anti-SLAPP motion. 

In the same case, the defendants/appellants recently asked the DC Circuit to stay discovery in the trial court.  Although the anti-SLAPP statute automatically stays discovery when a motion is filed, because Judge Leon denied the anti-SLAPP motion, he has apparently allowed discovery to begin.  The defendants/appellants are arguing that, because the case is on appeal, the district court has no jurisdiction to order discovery.  (Of course, Ms. Sherrod has argued that there is no right to appeal).     

            •           Farah v. Esquire:  The plaintiff’s appeal of the district court’s opinion granting the anti-SLAPP motion and dismissing the case is pending at the DC Circuit.  His motion to expedite the appeal was denied by the Circuit court; no briefing schedule has been entered to date. 

            •           Abbas v. Foreign Policy Group:  The defendants have moved to dismiss this libel suit under the anti-SLAPP statute (discussed at length here; also discussed by Politico here). 

            •           3M v. Boulter:  Although the district court granted the defendant’s motion to dismiss the Complaint, it denied his motion brought under the DC anti-SLAPP statute, holding that the statute was not applicable in federal court (opinion discussed here).  It remains to be seen if 3M will appeal the dismissal order.    

            •           Dean v. Maddow:  On November 14, the DC Superior Court dismissed the case with prejudice because of the plaintiff’s failure to comply with a Court order ordering him to pay the defendants their fees as a condition to being allowed to reassert his case in federal court.  The plaintiff is reportedly appealing the decision.  (As discussed here, the companion case involving the same parties remains pending in the DC federal court; it is stayed until resolution of the DC Superior Court action). 

            •           Payne v. District of Columbia:    On November 14, the defendants moved to dismiss the suit under the DC anti-SLAPP statute.  Their memorandum argues that the suit arises from statements made in furtherance of the right of advocacy on issues of public interest because the allegedly defamatory statements were made about claims pending in a court case.  It also argues that the plaintiff has made multiple public comments about his termination, thus making it an issue of public interest.  Having satisfied their burden, the defendants argue, the suit must be dismissed because the plaintiff cannot show that he is likely to prevail on his defamation and false light claims because: (a) the statements were not defamatory; (b) they were privileged; (c) they were protected opinion; and/or (d) there was no showing that the defendants acted with the requisite fault.  The motion argues that the intentional infliction of emotional distress claim fails because the conduct was not sufficiently outrageous, and that the constitutional defamation claim fails because the plaintiff cannot show the required type of damages. 

            •           Mann v. National Review, Inc.:   On October 22, this libel suit was filed in the DC Superior court, alleging that the defendants (National Review, Competitive Enterprise Institute and two of their contributors) libeled the plaintiff when they accused him of academic fraud in connection with his work as a climate scientist.  The original post at issue, by defendant Rand Simberg, is here; the other post at issue, by defendant Mark Steyn, is here.  The defendants’ time to respond to the Complaint has been extended to December 14, 2012.  I suspect that they will be filing an anti-SLAPP motion on that date.

The Abbas complaint, filed September 20 in DC federal court, alleges that the Foreign Policy Group, LLC, which is alleged to be a division of the Washington Post, libeled Abbas in a June 5, 2012 article bylined by co-defendant Jonathan Schanzer.  According to the complaint, the article suggested, through questions and links, that Abbas was improperly benefitting financially from his father’s status.  The complaint alleges that the article contained false information and relied on dubious sources, and that the author never contacted Abbas prior to publication.

The majority of the anti-SLAPP motion is spent chronicling Abbas’ background, prior articles about his businesses, his alleged history of using litigation to silence critics, and the article in question.  After providing this extensive background, the motion first argues that the anti-SLAPP statute applies in federal court: 

Because D.C.’s Anti-SLAPP statue confers a substantive protection under District of Columbia tort law, it applies in federal court.  See, e.g., Farah v. Esquire Magazine, 863 F. Supp. 2d 29, 36 & n.10 (D.D.C. 2012) (invoking decisions of the First, Fifth and Ninth Circuits applying anti-SLAPP statutes as substantive protections of state law and dismissing claims for defamation and related torts under the D.C. Act).  As Judge Leon concluded in Sherrod v. Breitbart, 843 F. Supp. 2d 83, 85 (D.D.C.), appeal docketed, No. 11-7088 (D.C. Cir. Aug. 30, 2012), “the legislative history make[s] clear that the D.C. Anti-SLAPP Act is substantive.”  As the Court further explained, “the statutory text” also “supports the conclusion that the statute is substantive.” Id. at 85 n.4.   For example, the Act “shifts the burden of proof to the plaintiff to show her claims are likely to succeed” and “it is long settled that the allocation of [the] burden of proof is substantive in nature and controlled by state law.”  Id. (quoting Godin v. Schencks, 629 F.3d 79, 89 (1st Cir. 2010)).  Similarly, the Act provides for an award of “attorneys’ fees and costs to the prevailing party,” and “such statutory provisions are substantive in nature” as well.  Id.; see also Farah, 863 F. Supp. 2d at 36 n. 10 (“It was certainly the intent of the D.C Council and the effect of the law . . . to have substantive consequences”).

The motion next argues that the suit must be dismissed because it arises from an act in furtherance of the right of advocacy on issues of public interest, and Abbas cannot show that he is likely to prevail on the merits.  On the first point (that the suit arises from an act in furtherance of the right of advocacy on issues of public interest), the motion argues that this requirement is amply satisfied because: (a) Congress is examining aid throughout the Middle East, and the comments were made against that backdrop; (b) they were made on a public forum about a public figure (Abbas); or (c) they were made on an issue of public interest. 

On the second point (that Abbas allegedly cannot show that he is likely to prevail), the motion argues that this is the case because the allegedly false statements were not statements of fact, but protected opinion; were not about Abbas or were not defamatory; and the complaint did not plead facts showing that the defendants acted with the required fault.  For each of these points, the anti-SLAPP motion relies on a memorandum filed in support of a motion to dismiss the complaint for failure to state a claim.

(If the defendants can show that the complaint fails to state a claim, one might wonder why they filed a separate anti-SLAPP motion?  The answer is that the anti-SLAPP motion stops discovery; allows the introduction of material beyond that appended or incorporated to the complaint; changes the burden of proof (requiring dismissal unless a plaintiff can show a viable claim); and provides for the recovery of attorneys’ fees.  On the other hand, but not just filing an anti-SLAPP motion, the defendants are protecting themselves in the even the court finds that the statute does not apply in federal court). 

The Abbas suit was assigned to Judge Sullivan, who has not presided over a case where an anti-SLAPP motion was made.  Of course, two of his colleagues have held that the statute is inapplicable in federal court (discussed here, here, and here), while another of his colleagues held it was applicable in federal court, and dismissed a suit (discussed here).

Given that two separate DC federal court judges have held that the statute does not apply in federal court, I would expect Abbas’ opposition to focus on this point.  Whether he includes additional arguments made by other defendants (e.g., Home Rule) remains to be seen.