According to the Washington Post, attorneys representing the District of Columbia, the DC Attorney General and DC Chief Financial Officer Natwar Gandhi have informed the DC Superior Court that they intend to file an anti-SLAPP motion in response to a defamation suit brought by Eric Payne, Gandhi’s former contracting director.
The complaint, filed July 30, 2012, alleges that, on June 11, 2012, Gandhi wrote in an email to a reporter that Payne was terminated because of his “poor performance.” It alleges that this “false, derogatory and defamatory” statement was disseminated locally, domestically and internationally by various media outlets. It alleges that Gandhi then told a Washington Post reporter that “Payne was ‘a very poor manager.’”
To prevail on an anti-SLAPP motion, a movant must first show that the claim arises from an “act in furtherance of the right of advocacy on issues of public interest.” The statute broadly defines that term to mean “[a]ny written or oral statement made . . [i]n connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law” or “[a]ny written or oral statement made . . . [i]n a . . . public forum in connection with an issue of public interest” or “[a]ny other expression or expressive conduct that involves . . . communicating views to members of the public in connection with an issue of public interest.” The defendants’ attorneys will have to show that Gandhi’s comments were within the scope of one of these definitions.
The statute defines “public interest” to mean “an issue related to 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” (emphasis added), but does not include “private interests, such as statements directed primarily toward protecting the speaker’s commercial interests rather than toward commenting on or sharing information about a matter of public significance.” Payne, I suspect, will argue that this is a private matter and not something of public significance.
While this will be the first time the DC anti-SLAPP statute has been used in this employer/employee context, similar motions have been successful in other jurisdictions. In Kapler v. City of Alameda, for example, the plaintiff (a former city employee) sued his former employer, alleging that it defamed him and committed other torts by alleging that he had stolen city property. The California trial court denied the defendants’ anti-SLAPP motion.
On appeal (the California anti-SLAPP statute provides a right to immediate appeal from the denial of an anti-SLAPP motion; that issue – whether there is a right to immediate appeal under the DC anti-SLAPP statute – is currently pending before the DC Circuit in Sherrod v. Breitbart), the California state intermediate appellate court reiterated that “[g]overnment defendants, whether entities or officials, may, like their private counterparts, invoke the anti-SLAPP statute’s protection” and held that the majority of the claims must be dismissed because they arose from activity in connection with a public issue:
Kapler’s causes of action for constructive discharge, intentional and negligent infliction of emotional distress, and violation of the [Firefighters’ Bill of Rights] arise, at least in part, from the city’s divulging to the media accusations of misconduct and allegedly incriminating photographs. These causes of action, based at least in part on alleged communications by the city and its employees with the media, fall squarely within the ambit of the anti-SLAPP statute.
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We reject Kapler’s assertion that his alleged misconduct and the city’s investigation and disciplinary actions were not “issues of public interest” under subdivision (e)(3) or “public issues” under subdivision (e)(4). Misappropriation of public property is a classic public issue under the anti-SLAPP statute.
Similarly, in Brandom v. Coupled Products, LLC, an Indiana state intermediate appellate court held that comments made by an employee to a newspaper about her employer’s allegedly anti-union practices were within the scope of the Indiana anti-SLAPP statute because they “were made in the context of negotiations between Coupled and the union concerning a move of some of Coupled’s business to Columbia City” and “[t]he economic impact of the move made the issue one of public interest.”
And in Hailstone v. Martinez, a California state intermediate appellate court held that allegedly defamatory statements made by union officials about the alleged misconduct of one of its management personnel was susceptible to a motion under California’s anti-SLAPP statute because the statements were in connection with an issue of public interest: “[t]he statements were made in connection with an ongoing controversy that was significant to Local 948 members, i.e., an investigation by Local 948’s elected representatives into the possibl[e] illegal actions of a union official who was currently serving in a fiduciary capacity as a trustee of the trust that provides health and welfare benefits to those members.”
I suspect that Payne will argue that the issue of his managerial capabilities and job performance are much less of a “public interest” than the alleged misdeeds in Kapler and Hailstone. Ultimately it will be up to the court to decide this issue.
One final issue warrants mention. According to the Superior court docket, the defendants were served in early September. As a result of several motions extending their time to respond to the complaint, the response is now due November 7. However, the statute requires an anti-SLAPP motion to be brought “within 45 days after service of the claim” and the motion won’t be made until almost three months after the defendants were served.
In the Statement of Reasons issued in Sherrod, Judge Leon cited the fact the anti-SLAPP motion was made beyond the 45 days as a reason why it was denied. On appeal, the defendants there are arguing that, because their time to respond was extended via motion, it was timely. While that seems to be the correct interpretation to me, until that issue is resolved, it seems to me that the defendants here are taking a risk by not moving within 45 days of service.