“Everybody’s gonna pay”

I am not a wrestling fan. So I don’t know if it’s true that Ted DiBiase, who wrestled as “The Million Dollar Man,” “is regarded by many as the greatest villain in pro wrestling history.” What I do know is that DiBiase’s theme song included the line “everybody’s gonna pay.” For parties that have recently found themselves on the losing end of anti-SLAPP special motions to dismiss under the D.C. anti-SLAPP statute, they have discovered exactly how much they’re “gonna pay”

First, some background. The D.C. anti-SLAPP statute’s legislative history explained that “defendants of a SLAPP must dedicate a substantial[] amount of money, time, and legal resources.” As such, the statute included a fee-shifting provision that allows a successful movant to recover its fees. The D.C. Court of Appeals has interpreted this provision to mean a successful movant is “presumptively” entitled to recover its fees “unless special circumstances in the case make a fee award unjust.”

So, how much does it cost to prevail on an anti-SLAPP special motion to dismiss under the D.C. statute? Judging from some recent filings – approximately $125,000.

CONTINUE READING . . .

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Another trade association filed an anti-SLAPP special motion to dismiss

In a prior post, I discussed the suit brought by three plaintiffs against Coca-Cola and the American Beverage Association, alleging that certain statements the defendants made about sugar-sweetened beverages and their effects on obesity were false and misleading under the D.C. Consumer Protection Act.

Like Coca-Cola, the ABA filed an anti-SLAPP special motion to dismiss. The ABA’s motion argued it satisfied its prima facie case of showing the suit arose from “an act in furtherance of the right of advocacy on issues of public interest” because its speech occurred in places open to the public/a public forum (website, press releases and billboards), about an issue of public interest (health, community well-being, goods in the marketplace).

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Can An Anti-SLAPP Movant Deny Making the Challenged Statement?

According to a complaint filed in DC Superior Court, earlier this year the Institute for Gulf Affairs published an article titled “Is SAPRAC A Wolf In Sheep’s Clothing?” The article asserted The Saudi American Public Relation Affairs Committee “has a ‘questionable stance on tolerance, especially against Jews and are associated with virulent anti-Semitism.’”

The complaint alleges that SAPRAC’s founder and president, Salman Al-Ansari, was so offended by this article that, in a June interview with a blogger, he made false and defamatory statements about IGA and its founder and director Ali Al-Ahmed, including that:

  • “AlAhmed is a terrorist himself”
  • “AlAhmed ‘cares nothing for the sincere shared collective of ideas and cultures, but AlAhmed will use any means to exterminate the prospects of a peaceful world”
  • “AlAhmed and his cronies at [IGA] are dangerous – they have much more going on here than simple written words – they are subversive and will use any destructive means possible to promote their own misguided agenda of their own brand of terrorism”
  • “this is a perfect example of a Wolf in Sheep’s clothing – AlAhmed might dress in public like a docile Sheep, but, in truth, he is a Wolf – he will destroy anything in his path, even if he has to kill it to get there.”

In their complaint, Al-Ahmed and IGA assert claims for defamation per se, false light invasion of privacy, and intentional infliction of emotional distress.

Last week, SAPRAC and Al-Ansari responded to the suit by filing an anti-SLAPP special motion to dismiss. In it, they argue the suit arises from “an act in furtherance of the right of advocacy on issues of public interest” because the challenged statements were made in an article posted on the Internet (thus satisfying the place open to the public/public forum requirement) about an issue of public interest (“safety” and “community well-being”). They also argue that, because Al-Ahmed is at least a limited purpose public figure, the challenged statements were about a “public figure,” which satisfies the “issues of public interest” definition.

SAPRAC and Al-Ansari argue the plaintiffs cannot show they are likely to succeed on the merits of their defamation or false light claims because the challenged statements were opinions, rhetorical hyperbole, or not defamatory, and because plaintiffs cannot demonstrate the challenged statements were made with actual malice or show special harm. SAPRAC and Al-Ansari additionally argue that, because the defamation claim fails as a matter of law, so must the intentional infliction of emotional distress claim. And, they argue, plaintiffs cannot show their conduct was extreme and outrageous or that it caused severe emotional distress.

My Two Cents: the most interesting part of the SAPRAC and Al-Ansari anti-SLAPP special motion to dismiss brief is buried in the middle, when they assert Al-Ansari never made the challenged statements: “Al-Ansari has never communicated in any way with someone by the name of Spencer Tripens and did not make any of the statements Al-Ansari is alleged to have made that form the basis for the claims in this SLAPP.” In fact, SAPRAC and Al-Ansari argue that plaintiffs cannot satisfy the “publication” element of a defamation claim because they cannot show Al-Ansari made the challenged statements:

In order to present a legally sufficient amount of evidence to demonstrate Defendants published the alleged statements, Plaintiffs must provide evidence on the necessary prerequisite that Al-Ansari, acting in his capacity as director of SAPRAC, published the alleged statements to Tripens. Since Al-Ansari has never communicated in any way with someone by the name of Spencer Tripens and because Al-Ansari did not make any of the statements that he is alleged to have made that form the basis for the claims in this SLAPP, Plaintiffs will not be able to demonstrate a legally sufficient amount of evidence that Defendants published the alleged statements.

As readers know, the plaintiffs opposing the anti-SLAPP special motion to dismiss filed by Fusion GPS and Glenn Simpson argued that Fusion and Simpson needed to make “an affirmative claim that their statements were made in a public forum or involved communicating to the public” to carry their prima facie burden under the D.C. anti-SLAPP statute, and could not simply rely upon the allegations in the complaint. I found a California decision that seemingly accepted this argument and held that, because the defendant there affirmatively denied making the challenged statements, she had not carried her prima facie burden.

In my prior blog post, I noted a Kansas trial court had reached a similar conclusion, holding that, because the plaintiff there submitted an affidavit in which she denied making the challenged statements, she had not carried her burden to establish a prima facie case. I noted that decision was reversed on appeal, with the appellate court holding the relevant question was whether the “claims in the plaintiff’s petition implicate a protected right under the statute” so that it was “irrelevant whether the defendant admits or denies making the statements in question.” (emphasis added).

Last year, the Texas Supreme Court reached a similar conclusion under that state’s anti-SLAPP statute. Several intermediate appellate courts had previously reasoned that, because the purpose of the statute was to protect free speech, protecting a party who denied having exercised free speech was inconsistent with the act’s purpose. The Texas Supreme Court overruled these decisions and held that, “[w]hen it is clear from the plaintiff’s pleadings that the action is covered by the Act, the defendant need show no more.” The court reasoned that “[t]he basis of a legal action is not determined by the defendant’s admissions or denials but by the plaintiff’s allegations.” As such, the court held, “the trial court was obliged to consider the [plaintiffs’] pleadings irrespective of whether [the defendant] formally offered them as evidence.” Because the complaint in the Texas suit alleged the defendant engaged in speech covered by the statute, the court held the anti-SLAPP statute applied, even though the defendant had denied making the statements at issue.

It remains to be seen if the plaintiffs will make this argument in opposition to the anti-SLAPP special motion to dismiss filed by SAPRAC and Al-Ansari and, if they do, how the Superior Court will rule. As always, stay tuned.

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What Is an “Issue of Public Interest”?

If a party moving under the D.C. anti-SLAPP statute shows the suit arises from a statement made in connection with “an issue under consideration or review by a legislative, executive, or judicial body,” does the statement also need to satisfy the “issue of public interest” definition in the statute?  That question is central to a suit pending in DC Superior Court.

CONTINUE READING . . .

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Superior Court Opinion Shows Why We Need a Federal anti-SLAPP Statute

In December 2017, three “international businessmen” sued Fusion GPS and Glenn Simpson, who allegedly retained Christopher Steele to research any Russian connections to Donald Trump, in DC federal court. The suit alleged that certain statements contained in one of the reports prepared by Steele were false and defamatory. Although Fusion and GPS filed an anti-SLAPP special motion to dismiss, it is unlikely the federal district court will even entertain that motion; rather, I anticipate Judge Leon will join his three colleagues (here, here and here) who have held the statute cannot be applied in federal court.

Meanwhile, in April 2018, the same three plaintiffs sued Christopher Steele and Orbis Business Intelligence in DC Superior Court. In Superior Court, unlike federal court, the DC anti-SLAPP statute is available. So Steele and Orbis filed an anti-SLAPP special motion to dismiss, which the Superior Court has now granted, ending the case with prejudice.

CONTINUE READING . . .

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Anti-SLAPP Statute Can’t Be Used Against Subpoena

Two years ago, I blogged about the anti-SLAPP special motion to dismiss filed by the Competitive Enterprise Institute in response to a non-party subpoena served by the Virgin Islands Attorney General. CEI maintained the subpoena, which sought documents relating to climate change and ExxonMobil, was aimed at silencing debate on a matter of public interest. So it filed an anti-SLAPP special motion to dismiss the subpoena.

The DC anti-SLAPP statute requires a party to first show the “claim” arises from an act in furtherance of the right of advocacy on issues of public interest. The statute defines “claim” as “any civil lawsuit, claim, complaint, cause of action, cross-claim, counterclaim, or other civil judicial pleading or filing requesting relief.” CEI argued the subpoena fell comfortably within this definition.

In my June 2016 blog post, I noted another Superior Court judge had already rejected the argument a subpoena was within the definition of “claim” for purposes of an anti-SLAPP special motion to dismiss. The VanderSloot court held that, if the DC Council wanted to include “subpoena” within the definition of “claim,” it knew how to do so (as evidenced by the fact it created a separate section of the statute dealing with subpoenas). The VanderSloot court also held a subpoena was different from the other categories of pleadings delineated in the statutory definition of “claim.”

In an opinion issued last Friday, the Virgin Islands court reached the same conclusion. Like the VanderSloot court, the Virgin Islands court concluded that, by addressing subpoenas in DC Code §16-5503 (the special motion to quash section), without including subpoenas in the definition of “claim,” the DC Council must not have intended “claim” to include subpoenas. Like the VanderSloot court, the Virgin Islands court held the first five examples of “claim” in the statutory definition (“any civil lawsuit, complaint, cause of action, cross-claim or counter-claim”) all differ from a subpoena because they involve a request for relief from the court, and not a request for information from a party or other person.

Next, the Virgin Islands court held the term “other judicial pleading” in the statutory definition of “claim” did not include subpoenas because Superior Court Rule 7(a) limits pleading to “complaints and answers, replies to counterclaims, answers to cross-claims, and third party complaints and answers.” Finally, like the VanderSloot court, the Virgin Islands court held that, because subpoenas are not a “judicial” filing or a “filing requesting relief,” as those terms are commonly used in judicial proceedings, the subpoena did not qualify under the catch-all provision of the “claim” definition. The court thus denied CEI’s motion to dismiss. It also denied CEI’s motion for fees under the anti-SLAPP statute, holding that, because the statute did not apply to the subpoena, CEI was not a prevailing party.

The DC anti-SLAPP statute allows the court to award fees and costs to the non-moving party if the motion “is frivolous or is solely intended to cause unnecessary delay.” The Virgin Islands Attorney General argued that standard was satisfied here because it had already agreed to withdraw the subpoena before CEI filed its anti-SLAPP special motion to dismiss. The court accepted CEI’s argument that the threat of future litigation (if the Virgin Islands re-served the subpoena) did not render the motion moot/frivolous, so it denied the Virgin Islands’ request for fees.

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It’s déjà vu all over again

Three “international businessmen” claim they were defamed by certain statements contained in one of the reports comprising the “Trump Dossier.” The one-count defamation complaint against persons involved in the dossier’s creation alleges one (out of 17) reports in the dossier made false and defamatory statements about the plaintiffs. The defendants respond to the complaint by filing an anti-SLAPP special motion to dismiss.

If this sounds familiar, you are not experiencing déjà vu. The same three plaintiffs sued Fusion GPS and Glenn Simpson, who allegedly retained Christopher Steele to research any Russian connections to Donald Trump, in DC federal court last year. In that suit, which remains pending before Judge Leon, Fusion and Simpson have filed an anti-SLAPP special motion to dismiss (see prior blog entries on the federal court suit here and here).

CONTINUE READING . . .

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Superior Court Grants Anti-SLAPP Motion And Dismisses Tortious Interference Claims Against PBS

The D.C. anti-SLAPP statute has most often been used in cases involving claims of defamation. See Boley v. Atlantic Monthly Group; Moore v. Costa. It has also been successfully invoked in cases involving defamation-related claims. See, e.g., Farah v. Esquire Magazine, Inc. (false light invasion of privacy, Lanham Act, misappropriation invasion of privacy); Forras v. Rauf (false light, assault, intentional infliction of emotional distress). We can now add intentional interference with existing contracts and tortious interference with business expectancies to the list of claims against which a successful anti-SLAPP special motion to dismiss has been made.

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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.

CONTINUE READING . . .

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