Both the plaintiff and the defendants in the Lehan v. Fox case today filed the supplemental briefs ordered by the Court last month. As I suspected then, the briefs address the “retroactivity” issue, addressing whether the statute is substantive or procedural in nature.
The plaintiff’s supplemental brief first argues that this suit is not a quintessential SLAPP suit because it was not filed to silence speech, but for damages suffered as a result of a false and defamatory news story. Then turning to the issue requested by the Court, it argues that “the Anti-SLAPP Act is substantive in nature and should not be retroactively applied to Mr. Lehan’s claim.”
According to the plaintiffs, statutes are presumed to operate prospectively unless there is clear legislative showing that they are intended to be given retroactive effect. It argues that the only exception to this general rule is if a law is “clearly” procedural, in which case it applies to pending cases absent contrary legislative intent.
Against that backdrop, the plaintiff argues that the statute is substantive. He quotes from the statute’s legislative history, arguing that the DC Council repeatedly stated that it provided “substantive rights,” and that the statute, as a whole, must thus be read to provide substantive rights”. The plaintiff argues that this conclusion is buttressed by the fact that the statute reallocates the burden of proof, requiring a plaintiff to show that dismissal is not required, and provides for the recovery of attorneys’ fees, and thus provides substantive rights. Finally, argues the plaintiff, other federal courts have found that the statute is substantive, in order to apply it to actions in federal court (under Erie). Because there is no indication in the statute that it was intended to apply retroactively, as required for substantive legislation, it cannot be applied retroactively, the plaintiff argues.
Unsurprisingly, the defendants have a different position on this issue. Their supplemental brief explains that procedural statues apply retroactively and do not require any statement of retroactive intent. It argues that the anti-SLAPP statute is procedural because the plaintiff’s burden and required elements have not changed since the statute was passed and the fact it requires him to meet his burden earlier under the law does not make it substantive.
The defendants argue that substantive law changes the legal consequences of acts completed before its effective date, and that the statute here did not change any legal consequences. Conversely, it argues, where a statute merely changes the procedure for a certain claim, it applies to pending cases. That it argues, are the facts here.
Anticipating the arguments contained in the plaintiff’s brief, the defendants argue that the DC Council’s use of the word “substantive” is irrelevant, and that the Court is required to analyze the statute under established DC law. Finally, the defendants argue, other states have similarly held that anti-SLAPP statues are procedural and apply to pending cases.
Of the two briefs, the defendants clearly have the better of the arguments. As they persuasively argue, before the statute was filed, the plaintiff had to satisfy certain elements to prevail on a defamation claim (false statement, defamatory in nature, with the requisite degree of fault, causing resulting damages) and these elements did not change after the passage of the statute. The fact that they have to show a viable claim now, rather than later, does not substantively change the law.
The defendants’ weakest point is their assertion that the statute does not reallocate the burdens of proof. It does. Usually when a defendant moves to dismiss the complaint, he cannot rely on documents beyond the pleading. Under the anti-SLAPP statute he can. Usually a plaintiff is entitled to discovery before having to respond to a potentially dispositive motion. Under the anti-SLAPP statute, discovery is prohibited.
That being said, I would expect the defendants to prevail on their anti-SLAPP motion.