Superior Court Grants Trade Association’s anti-SLAPP motion

Last October, I wrote about the Personal Care Products Council’s interesting anti-SLAPP motion, filed in a DC Superior Court case. There, the plaintiff (Simpson) alleged that she developed ovarian cancer by using talcum powder. In addition to suing talc manufacturers and suppliers, she sued PCPC, alleging that it submitted information to governmental agencies about talc’s safety that was “biased” and was part of a campaign to “prevent the regulation of talc and to mislead the consuming public about the true hazards of talc.”

Earlier this year, the Superior Court granted PCPC’s anti-SLAPP special motion to dismiss in an oral ruling from the bench. The ruling is interesting because, as far as I am aware, it is the first decision to apply the Court of Appeals’ Mann decision.

The Superior Court first held that PCPC had satisfied its burden of showing that the suit arose from an act in furtherance of its right of advocacy on issues of “public interest.” Although Simpson argued that PCPC could not be said to be “speaking” about issues in the public interest because, when it “spoke,” it was representing the views of its members and their commercial interests, the court rejected this argument:

the court distinguishes between when a trade association is promoting a specific product or the benefits of a specific product versus when a trade association is speaking more generally about products and the health and safety of those products as opposed to a specific commercial product named.

* * *

Plaintiff’s complaint does not allege that PCPC made any representations regarding a particular product, only about the safety of talc in general. Furthermore, PCPC is a nonprofit trade association.  It does not manufacture, design or sell any products. As a result, PCPC does not have, this Court concludes, a commercial interest to protect.

The court agreed with PCPC that its submission of scientific reports to government agencies, for which it was being sued, qualified as an act in furtherance of the right of advocacy under the statute. It held that PCPC’s release of information about talc to the public also qualified as an act in furtherance of the right of advocacy. As such, the court found that PCPC had established a prima facie case, shifting the burden to Simpson to show that she was likely to prevail on the merits.

With respect to Simpson’s burden, the Superior Court expressly followed the Court of Appeals’ recent interpretation of the standard in Mann, holding that Simpson needed to show “whether a jury properly instructed on the law, including any applicable heightened fault and proof requirements could reasonably find for [Simpson] on the evidence presented.” The court held that Simpson had not carried her burden with respect to her negligence claim: although Simpson alleged that PCPC owed her a duty by promulgating industry standards, and that it breached this duty by failing to ensure member compliance with its standards, an unrebutted affidavit from PCPC stated that it had no authority to regulate its members, and thus could not have prevented the sale of talcum-containing products. The court held that Simpson’s fraud and conspiracy claims were also fatally deficient.

Simpson argued that she was entitled to discovery before the court ruled on PCPC’s anti-SLAPP motion to dismiss. The court acknowledged that the statute allows targeted discovery, but found that Simpson had not explained what targeted discovery she needed to defeat PCPC’s motion. As such, it denied Simpson’s discovery request and, instead, granted PCPC’s special motion to dismiss.

The court then turned to the issue of attorney’s fees. Simpson’s counsel argued that this case was a “special circumstance” under which the court should not grant attorney’s fees:

plaintiff in filing its complaint had no idea that a motion to dismiss based on the Anti-SLAPP statute would be filed, did not anticipate this issue.  And we are not specifically filing this lawsuit with the SLAPP provisions in mind.

Referencing the Court of Appeals’ Burke II decision, in which the Court held that a successful anti-SLAPP movant was presumptively entitled to recover its fees, the Superior Court held that it would award PCPC its attorney’s fees.

My takeaway: This case demonstrates the power of anti-SLAPP statutes.  Simpson essentially filed a products liability lawsuit that, among other allegations, claimed the industry trade association had some role in misinforming the public and government about talc. By invoking the anti-SLAPP statute, PCPC was able to stop all discovery and introduce evidence contradicting the allegations in the complaint. This was central to the court granting PCPC’s motion, and awarding it its fees.

 

 

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Foreign Officials, Defamation Claims and the DC anti-SLAPP Statute

For the third time in the past five years, a court has applied the DC anti-SLAPP statute to dismiss a defamation suit brought by a foreign official.

CONTINUE READING . . .

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Three Takeaways from the DC Court of Appeals’ Mann Decision

There have been numerous articles about the long-awaited DC Court of Appeals’ opinion in Michael Mann’s libel suit against the National Review and Competitive Enterprise Institute, including in the Washington Post, Buzzfeed, Inside Higher Education, and National Review.  While there is much to analyze, consider and discuss in the 105-page opinion, as it relates to the DC anti-SLAPP statute, there are three specific takeaways.

CONTINUE READING . . .

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National Roundup of Important Anti-SLAPP Appeals

After the DC Circuit issued its decision in Abbas v. Foreign Policy Group last year, holding that the DC anti-SLAPP statute does not apply in a federal court diversity case (and disagreeing with every other federal appellate court to decide the issue of whether a state anti-SLAPP statute applies in federal court), I’ve been watching to see if Abbas was an outlier, or the beginning of a trend.  The next few months should go a long way towards giving us that answer.  Here’s why.

CONTINUE READING . . .

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Is a Consumer Trade Association’s Speech Covered by the DC Anti-SLAPP Act?

When a consumer trade association “speaks” about the health effects of a product, is its speech on an issue of public interest, and thus within the scope of the DC anti-SLAPP statute, or is it in furtherance of the association’s private or commercial interests, falling outside the statue’s scope?  A case pending in DC Superior Court could answer this interesting question.

CONTINUE READING . . .

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What’s Going On With The Mann v. National Review Appeal?

In November 2014, this intrepid blogger trooped down to the DC Court of Appeals to watch the Mann v. National Review oral argument.  In my post, I wrote that the panel was likely to conclude that the denial of an anti-SLAPP motion to dismiss was immediately appealable (having already held, in Burke v. Doe I, that the denial of a special motion to quash under the DC anti-SLAPP statute was immediately appealable), and that the tougher question would be how to apply the “likely to succeed” standard at the motion stage.

CONTINUE READING . . .

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Subpoenas and SLAPP Motions to Dismiss

If an individual or entity believes a subpoena is aimed at silencing debate on a matter of public interest, can it invoke the DC anti-SLAPP statute in response?  That is the question presented by a recent anti-SLAPP motion filed by the Competitive Enterprise Institute in DC Superior Court.

CONTINUE READING . . .

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Convicted Felon’s Defamation Suit Triggers Multiple Anti-SLAPP Motions

In late March, David Pitts filed suit against two local television stations (Channels 4 and 7), their parent companies, and Patch Media, which runs hyperlocal websites.  According to the Superior Court Complaint, Pitts was sentenced in March 2015 for burglary and identity theft.  He alleges that, on or about March 20, 2015, “Defendants” reported that he had been sentenced to “two years in jail for setting fires, or arson,” citing to a Channel 4 article.

CONTINUE READING . . .

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Anti-SLAPP Statute Raised in Planned Parenthood Protest Lawsuit

The DC anti-SLAPP statute has been invoked in a Superior Court lawsuit in which plaintiffs arguing that students need to be free from disruptions in the school environment are facing off against anti-abortion protestors.

CONTINUE READING . . .

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DC Court of Appeals Affirms February 2012 Denial of Anti-SLAPP Motion in Newmyer v. Huntington

Waaaaaaay back in early 2012, after a defendant (Huntington) filed a counterclaim against a plaintiff (Newmyer) for defamation, false light and related torts, Newmyer responded by filing an anti-SLAPP motion (you can read more about the case here).  Newmyer’s anti-SLAPP motion was denied by the Superior Court judge, who found that it was filed too late (although he stated that, if he believed the counterclaim was a true SLAPP, “the court might very well conclude that the ameliorative purpose of the Act requires a more flexible interpretation of the forty-five day framework”).

The Superior Court did not need to wrestle with that question, however, because it concluded that there was “no indication” that “this is a claim designed to silence or punish one for speaking out on issues of public importance.”  According to the Superior Court, “it is incredulous that Mr. Newmyer would view Dr. Huntington’s defamation counter-claim as an offensive weapon of intimidation” when, in the court’s view, “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.”  The Superior Court allowed Huntington to recover his fees, concluding that the anti-SLAPP motion was “baseless and, therefore frivolous.”

Newmyer immediately appealed the denial of his anti-SLAPP motion to the DC Court of Appeals, which dismissed the appeal in a per curiam order that stated:

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. 

Last year, the entire case finally reached the DC Court of Appeals (after discovery and cross motions for summary judgment).  In late December 2015, the Court affirmed the Superior Court’s resolution of the anti-SLAPP motion:

We affirm the trial court’s denial of the motion and award of attorney’s fees for two reasons.  First, Mr. Newmyer filed his motion on February 29, 2012, more than forty-five days after Dr. Huntington filed his counter-complaint on May 12, 2011.  See D.C. Code §16-5502(a) (placing a forty-five day limit on such claims).  Second, Mr. Newmyer failed to establish any issue of public interest.  See D.C. Code §16-5501(3) (2012 Repl.) (stating that an “‘[i]ssue of public interest’ means an issue related to the health or safety; environmental, economic, or community well-being; the District government; a public figure; or a good, product, or service in the market place” and “shall not be construed to include private interests.”). 

My takeaway: the decision shows why there should be an immediate right to appeal the denial of an anti-SLAPP motion.  Anti-SLAPP statutes protect parties from “expensive and time consuming discovery” that is often part of libel litigation.  If the DC Court of Appeals had decided, in December 2015, that Newmyer’s anti-SLAPP motion should have been granted, it would have come far too late for Newmyer, who had to litigate the case for over three years, with its enormous attendant costs.  Making a party go through the entire lawsuit before being able to secure appellate review seems inconsistent with the purpose of the statute: avoidance of potentially unnecessary litigation.

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