The defendants in the Farah v. Esquire suit today filed their reply brief in support of their motion to dismiss the lawsuit for failure to state a claim or under the DC anti-SLAPP statute. The reply brief points out that the plaintiffs’ opposition did not respond to the majority of the arguments in the defendants’ memorandum and argues that this shows the lack of merit in the lawsuit.
Turning to what the plaintiffs actually argued, the defendants assert that the Massachusetts’ district court opinions relied upon by the plaintiffs were effectively overruled by the First Circuit last year and, thus, the plaintiffs are incorrect when they assert that anti-SLAPP motions are rarely granted. (In a nice touch, the defendants cite six separate federal court decisions granting anti-SLAPP motions since their opening brief was filed on August 26, 2011).
The defendants also argue that the legislative history of the DC anti-SLAPP statute makes clear that it confers substantive rights and, as such, the DC federal court should follow other courts “that have faced the issue, have decided that anti-SLAPP statutes do confer a substantive immunity and do not present a conflict with the Federal Rules of Civil Procedure and so should be enforced.”
Next, defendants argue that the plaintiffs’ stated motivation in bringing the lawsuit (“to vindicate a legally cognizable right”) is irrelevant in deciding an anti-SLAPP motion, and that the Court is limited to deciding whether the suit arises from speech within the statute’s protections and, if so, if the plaintiff has shown a likelihood of success on the merits sufficient to thwart dismissal. They then argue that the plaintiffs’ “commercial speech” argument is wrong both factually and legally and assert that, because the plaintiffs have not shown that they are likely to succeed on the merits, their complaint must be dismissed.