I previously blogged about the libel suit brought by Sheldon Adelson against the National Jewish Democratic Council and others, alleging that an article they published, which reported that Adelson had personally approved of prostitution in his casinos, and urged then-Presidential candidate Mitt Romney to reject his “dirty money,” was false and defamatory. The defendants initially moved to dismiss the suit under Rule 12(b)(6) and the DC anti-SLAPP act. At the Court’s request, the parties then briefed whether the suit would survive under Nevada’s anti-SLAPP statute.
On September 30, the Court dismissed the suit, holding that it failed to state a claim under Rule 12(b)(6). The Court also held that Nevada (and not DC) law applied to the dispute and that the suit also must be dismissed under the Nevada anti-SLAPP statute.
The Opinion initially holds that Nevada law applied to the multistate party suit because that was the state with the most significant relationship to the issue/parties, given that Adelson was a Nevada citizen, his “business empire” was based in Nevada and Nevada had an interest in protecting its citizens from tortious conduct. Although the defendants argued that the District of Columbia had a more significant interest, because the allegedly defamatory statements were made during the Presidential election, which is regulated by the Federal Election Commission, and two of the defendants were domiciled in DC, which was where the allegedly defamatory statements were drafted and disseminated, the Court rejected these arguments, holding that they did not trump Nevada’s obvious interest.
Given that conclusion, the remainder of the lengthy opinion is less interesting to readers of this blog. Suffice to say that the Court accepts all of the defendants’ arguments, including that certain statements in the allegedly defamatory article were protected by the fair report privilege (because the article relied on and linked to an Associated Press article that reported on judicial proceedings); and that other allegedly defamatory statements were protected opinion.
In addition to holding that the lawsuit did not survive the Rule 12(b)(6) motion, the Court holds that the Nevada anti-SLAPP statute also demanded its dismissal. Interestingly, the Court excuses the defendants’ failure to timely file their anti-SLAPP motion under the Nevada anti-SLAPP statute because it finds that it was unclear what law might apply to the dispute and the defendants advised the Court and the parties that they intended to move under the Nevada anti-SLAPP statute if Nevada law applied to the dispute, and then promptly made such a motion:
[t]he Court sees no reason to punish Defendants based on timeliness alone, given the complexities of this case, the purposes of Nevada’s Anti-SLAPP statute, and Defendants’ prompt filing of their motion after the Court concluded that Nevada law would apply.
(In Newmyer v. Huntington, the DC Superior Court judge held that, although the motion was not timely made, he might have excused its untimeliness if the did not fail for other reasons. In Sherrod v. Breitbart, however, the DC Circuit held that, because the motion was not timely made, that doomed the entire motion).
The Adelson Opinion also addresses the “Erie argument,” and directly responds to Ninth Circuit Judge Kozinski’s concurrence in Makaeff v. Trump Univ., which urged that Court to consider revisiting whether the California anti-SLAPP statute should apply in federal court. The Adelson court explained that “Chief Judge Kozinski also apparently believed it to be of no consequence that California’s statute – like Nevada’s – authorizes an award of attorney’s fees if the defendant prevails.” The import of this, according to the Adelson court, is that “the traditional rule is that state statutes authorizing attorney’s fees are substantive in nature when they embody a substantial policy of the state.”
According to published reports, Adelson’s counsel is considering an appeal to the Second Circuit.