Update on Two Cases Where Anti-SLAPP Special Motions to Dismiss Have Been Filed

In January, I wrote about anti-SLAPP special motions to dismiss filed by the Trump Campaign and Roger Stone in response to a DC federal court suit alleging they “entered into an agreement with other parties, including agents of Russia and WikiLeaks, to have information stolen from the DNC publicly disseminated in a strategic way that would benefit the campaign to elect Mr. Trump as President.”

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Interesting Arguments in Fridman v. Bean LLC Briefs on Anti-SLAPP Special Motion To Dismiss

In February, I wrote about Fridman v. Bean LLC, where “three international businessmen” claim they were defamed by certain statements in one of the reports comprising the “Trump Dossier.” The defendants (Fusion GPS and Glenn Simpson, who allegedly retained Christopher Steele to research any Russian connections to Trump) filed an anti-SLAPP special motion to dismiss the suit.

The plaintiffs have filed their opposition to the anti-SLAPP special motion to dismiss, and the defendants have filed their reply brief. Beyond the usual sparring over whether Mann means the statute can again apply in a federal court case, both briefs raise interesting arguments worth exploring in more detail.

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Third DC District Court Judge Reaffirms that DC anti-SLAPP Statute Inapplicable In Federal Court

Last April, a picture was taken of Cassandra Fairbanks and Mike Cernovich in the White House press room flashing an ok hand gesture. At the time, rumors circulated on the Internet that the ok hand gesture meant “white power.” So Emma Roller, a politics reporter, tweeted Fairbanks’ photo to her followers with the statement “just two people doing a white power hand gesture in the White House.” Roller then sent a second tweet in which she linked to an entry in the Anti-Defamation League Hate Symbols Database for White Power (hand sign). The ADL, however, then issued a press release in which it explained the ok sign was not a white power symbol, but was instead the creation of internet hoaxers.

Indeed, Fairbanks sent out tweets acknowledging that Roller had been the victim of the hoax, and laughing at her. Then she sued Roller for defamation, false light, intentional infliction of emotional harm, and negligent infliction of emotional distress, based on the first tweet. Before Roller filed a responsive pleading, Fairbanks amended her complaint to drop all the causes of action except the first one for defamation per se.

Roller moved to dismiss the complaint, arguing the tweet was protected opinion that was not capable of being proven true or false or, alternatively, that the suit should be dismissed because Fairbanks had not pleaded facts showing the tweet was published with actual malice.

Roller filed a companion anti-SLAPP special motion to dismiss in which she argued that, although the DC Circuit (in Abbas) held the anti-SLAPP statute was inapplicable in a federal court diversity case, that conclusion was based on that court’s prediction the standard under the statute was inconsistent with the Federal Rules of Civil Procedure. Roller argued that, because the DC Court of Appeals (in Mann) then held, as a matter of “first impression,” that the statute’s “likely to succeed” standard was, in fact, “substantively the same” and does “simply mirror” the standards imposed by Federal Rule 56, the factual underpinning for the Abbas decision was no longer valid, and the court should apply the statute in federal court.

Fairbanks, as you might expect, argued the federal district court was bound to follow Abbas; that Mann did not change the law; and that Judge Huvelle’s Deripaska decision (which refused to apply the statute in federal court even after Mann) was correct and should be followed here. Fairbanks also argued the suit did not arise from an act in furtherance of the right of advocacy on issues of public interest, she was likely to prevail on the merits, and the statute was unconstitutional (because it required the court to make determinations of disputed issues of material fact and weigh evidence, and thus violated the Seventh Amendment right to a jury trial).

Fairbanks’ Seventh Amendment argument ignored that the DC Court of Appeals (in Mann) specifically interpreted the standard to avoid this issue. Roller’s reply brief pointed this out, in addition to arguing the federal court was obligated to follow the DC Court of Appeals’ Mann decision, because it had “spoken clearly and unmistakably to the current state of D.C. law.”

Last week, the DC federal court granted Roller’s 12(b)(6) motion to dismiss Fairbanks’ Complaint. The court sidestepped the question of whether the tweet was opinion or factual because, in the court’s view “actual malice presents a clearer question and requires dismissal of the case.” The court noted that Fairbanks conceded she was a “public figure,” which required her to plead facts showing that Roller published the tweet with actual malice. It held Fairbanks had not satisfied this demanding standard because: (1) she had not pleaded facts sufficient to support her conclusory allegation that Roller knew the falsity of her statement; (2) her assertions that Roller failed to perform due diligence consistent with professional standards of journalism or had a motive to smear Fairbanks’ reputation as a competing grassroots journalist were insufficient to show actual malice; and (3) Roller’s alleged failure to correct her statement did not show she had actual malice when she published it. According to the court:

Especially given the public debate about the “okay” hand gesture at the time of Ms. Roller’s tweet, Ms. Fairbanks’ allegations do not provide clear and convincing evidence of actual malice. Indeed, the inescapable conclusion one reaches upon viewing the photo and tweets at issue (including Ms. Fairbanks’ tweets) is that Ms. Fairbanks intended her photo and hand gesture to provoke, or troll, people like Ms. Roller—whether because the gesture was actually offensive or because they would think that it was offensive—not that Ms. Fairbanks was the victim of a malicious attack based on innocent actions. So Ms. Fairbanks has failed to state a claim and her case should be dismissed.

Turning to the anti-SLAPP special motion to dismiss, Judge McFadden joined Judges Huvelle and Mehta in holding that, even after Mann, the DC anti-SLAPP statute cannot apply in a federal court diversity case. The court reasoned that, while the Mann court held the anti-SLAPP standard mirrored that found in the Federal Rules of Civil Procedure, the statute still conflicted with the Federal Rules because it inverted the burdens:

But like a mirror, the anti-SLAPP statute reverses the image that it reflects: Mann agrees with Abbas that the statute differs from Rule 56 by requiring the plaintiff to show a likelihood of success on the merits instead of placing the burden on the defendant. Id. And Mann adds that the statute’s dismissal standard differs from Rule 12 by requiring the plaintiff to produce evidence rather than allowing the plaintiff to rely on the allegations in her complaint. Id. at 1233; see also Libre by Nexus, 2018 WL 2248420 at *9. In short, Mann does not align the District’s anti-SLAPP statute with the Federal Rules.

* * *

[Mann] does not show that the anti-SLAPP statute should apply in federal court. So I am bound by the law of the Circuit and must dismiss Ms. Roller’s anti-SLAPP motion.

For those who looked at Mann as providing a glimmer of hope that the DC anti-SLAPP statute would again be available in federal court, the Fairbanks decision, coming after the Deripaska and Libre by Nexus decisions, is disheartening. While the DC Circuit was always going to be the final arbiter on this question, its hard to imagine a DC federal district judge applying the statute until the Circuit revisits and decides the issue. As always, stay tuned.

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DC Federal Court Holds Anti-SLAPP Statute Does Not Apply in Federal Question Jurisdiction Case

In its Abbas decision, the DC Circuit held that, because it believed the standard contemplated by the DC anti-SLAPP statute conflicted with the standards required under Federal Rules of Civil Procedure 12 and 56, the statute could not apply in a federal court diversity case. Although the DC Court of Appeals in Mann then stated that “the standard to be employed by the court in deciding whether to grant the motion” “is substantively the same” as that under the Federal Rules, two DC federal district judges have nevertheless held the DC anti-SLAPP statute still cannot apply in a federal court diversity case (discussed here and here).

A reader recently brought another opinion to my attention: issued in January in Democracy Partners v. Project Veritas Action Fund. There, Democracy Partners sued various defendants for allegedly infiltrating its offices through misrepresentations, stealing confidential documents, and secretly recording hours of conversations.

In January, Judge Huvelle denied defendants’ motion to dismiss the complaint. The court’s opinion also denied a companion anti-SLAPP special motion to dismiss filed by the same defendants. While that, by itself, is not particularly notable (because, as the opinion notes, Judge Huvelle had already held that Abbas foreclosed applying the anti-SLAPP statute in a federal court diversity case, even after Mann), the opinion is noteworthy because jurisdiction in the Democracy Partners case was based on federal question, and not diversity of citizenship. As the court’s opinion explained, “[d]efendants contend that this distinction is significant, asserting that the Abbas decision is ‘not controlling where the court’s jurisdiction [over a state law claim] is based on the presence of a valid federal question.’”

The Democracy Partners opinion finds this distinction to be without a difference. The court explained that, in its Abbas decision, the DC Circuit applied the Supreme Court’s Shady Grove opinion, which has not been limited to diversity jurisdiction cases. Thus, the court concludes that Shady Grove and, by extension, Abbas, apply to a case based on federal question jurisdiction in the same way they apply to a case based on diversity jurisdiction.

The Democracy Partners opinion explains that “any other conclusion would create an irrational distinction in the treatment of identical state law claims.” Of course, one could argue that, by refusing to apply the DC anti-SLAPP statute in federal court, although it applies to the same claims in Superior Court, the DC Circuit has “create[d] an irrational distinction in the treatment of identical state law claims”! Anyway, the DC federal district court, for the first time I believe, holds the DC anti-SLAPP statute does not apply to those DC claims brought in a federal court case grounded in federal question jurisdiction.

 

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Attorneys Fees Motion Spawns Second Dispute

The suit filed by JAP Home Solutions against Jose Gallego (a journalist working for El Espanol) and other defendants produced a flurry of motions and cross motions, including special motions to dismiss under the DC anti-SLAPP act, 12(b)(6) motions, motions to strike, objections to motions, and a motion for targeted discovery. The Superior Court resolved most of these motions in a November 29, 2017 Opinion and Order. Now the dispute over attorneys’ fees is again generating a blizzard of paper.

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Another Judge Refuses To Apply Anti-SLAPP Statute In Federal Court Diversity Case

For those hoping that, after the DC Court of Appeals’ Mann decision, DC federal district judges would again apply the DC anti-SLAPP statute in a diversity suit, as multiple judges had done before the DC Circuit’s Abbas decision, they are going to have to wait longer. A second DC federal district judge has now concluded that – despite Mann – the DC anti-SLAPP statute cannot apply in a DC federal court diversity case.

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Superior Court Dismisses Anti-SLAPP Complaint Aimed at Arbitration

Last year, I blogged about the Wilkenfeld v. Steward Partners complaint filed in DC Superior Court, where Ari Wilkenfeld was asking the court to stop an arbitration from proceeding against him, because he believed the defamation claim therein was a SLAPP. I thought that Wilkenfeld would have a difficult time asking a Superior Court judge to use the DC anti-SLAPP statute to stop an arbitration. I was correct.

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Robo-Team Complaint Dismissed For Lack of Personal Jurisdiction

Last November, I blogged about Robo-Team NA, Inc. v. Endeavor Robotics, where Robo-Team alleged that a competitor (Endeavor) spread a false rumor that the Chinese government controlled Robo-Team, and used it to steal military technology from the United States. Robo-Team sued Endeavor and its lobbying firm (Sachem) for defamation, tortious interference with contactual and other business relationships, civil conspiracy, and unfair competition. Both defendants filed anti-SLAPP special motions to dismiss (along with “traditional” motions to dismiss).

I thought a decision might offer a glimpse into whether the DC anti-SLAPP statute was applicable in a federal court diversity case and/or the commercial exception. Unfortunately that’s not the case. In an opinion issued last week, the Court holds that it lacks personal jurisdiction over both defendants, so it grants their motions to dismiss. Consequently, the Court doesn’t reach the anti-SLAPP special motions to dismiss.

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When Does a Party “Prevail” Under the DC Anti-SLAPP Statute

When I last wrote about the Jacobson v. Clack case, Jacobson had voluntarily dismissed the suit (two days after a hearing on the defendants’ anti-SLAPP motion, but before the Superior Court ruled on the motion). I wondered if the defendants would move to recover their fees. Well, wonder no more.

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Investigative Report At Center of Alleged SLAPP

An interesting case is playing out in DC Superior Court. The plaintiffs allege, in a 103-page, 535-paragraph complaint, that they were defamed and cast in a false light in a 541-page report that was commissioned by the American Psychological Association, and prepared by the international law firm Sidley & Austin and its partner, David Hoffman, all of whom are defendants in the case.

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