On September 27, the DC federal court applied the DC anti-SLAPP statute and dismissed the libel suit brought by Yasser Abbas, the son of Mahmoud Abbas, the President of the Palestinian Authority. In so doing, Judge Sullivan became the third DC federal court judge to expressly hold that the DC anti-SLAPP statute can be invoked in federal court, joining Judge Walton in Boley v. Atlantic Monthly Group, Inc. and Judge Collyer in Farah v. Esquire Magazine, Inc. (Of course, in 3M v. Boulter, Judge Wilkins held that it does not apply in federal court).
The Abbas court first addressed the threshold question of whether the DC anti-SLAPP statute applies in a federal court sitting in diversity. Noting that “other circuits have found that similar state statutes apply in federal court,” and that two other DC federal court judges had done so, the Abbas court holds that it was “persuaded by those Circuits that have held that similar statutes do apply in federal court.” Interestingly, although the DC Circuit did not directly address the issue in Sherrod, the Abbas court found its decision notable on the issue of whether the statute applies in federal court:
[t]hough the Circuit did not address the applicability of the District statute to a federal court sitting in diversity, implicit in its holding that defendant had failed to file its motion within the statutory time frame is the conclusion that the statute applies in federal court.
After holding that the statute applies in federal court, the Court easily finds that the challenged statements are within the scope of the act because they were made in a public forum (the internet) and because they concerned an issue of public interest (“the question of whether the sons of the President of the Palestinian Authority are enriching themselves by virtue of their political ties, and whether some of their wealth can be traced to U.S. tax dollars”).
As such, the burden shifted to Abbas to show a likelihood of success on the merits. Like other courts (including the federal court in Boley and the DC Superior Court in Mann), the Abbas court applied California’s standard in deciding whether Abbas had shown a likelihood of success on the merits.
The Court holds that he has not. Initially, the Court agrees with the defendants that many of the challenged statements are rhetorical questions that are not assertions of fact. According to the Court, questions in the article about whether “the sons of the Palestinian president [are] growing rich off their father’s system” and whether “they enriched themselves at the expense of regular Palestinians – and even U.S. taxpayers” cannot “be read to imply the assertion of objective facts” because they simply “invite the reader to form her own judgments regarding the relationship between Mr. Abbas’s family ties and his admittedly great wealth” and “[t]he reader could arrive at a number of different conclusions.”
The Court additionally holds that the two questions are protected opinion because they “are supported by facts provided in the article as well as hyperlinked source material in the form of articles in other publications, company websites, and interviews given by the plaintiff” – which serve “to put the reader on notice that the piece is one of opinion.” The Court buttresses its conclusion by noting that the challenged statements were contained in the “Arguments” section of the website – a place “in which readers expect to find analytical and opinionated pieces that reflect a particular viewpoint.”
Finally, the Court holds that other challenged statements in the article refer to other individuals, and not Abbas, and are thus not “of and concerning” him as required to state a viable defamation claim.
Notably, because the Court dismisses the Complaint under the DC anti-SLAPP statute, it finds that the companion 12(b)(6) motion is moot. As such, if there is an appeal by Abbas, it will force the DC Circuit to resolve whether the DC anti-SLAPP statute applies in federal court. (As I have previously noted, the district court’s decision in Farah was under both the DC anti-SLAPP statute and Rule 12(b)(6), which could allow the DC Circuit to affirm on the basis of Rule 12(b)(6)).