When we last wrote about Michael Mann’s libel suit against National Review, Competitive Enterprise Institute, and two individual defendants, the DC Superior Court had denied anti-SLAPP motions filed by all defendants. Since that date, there have been several notable developments in the case, including an appeal to the DC Court of Appeals, a return to the DC Superior Court, and another upcoming appeal. Here is what you might have missed:
• the defendants asked the Superior Court to certify its Orders denying their anti-SLAPP motions for interlocutory appeal; that motion was denied (in the interim, the case was transferred from Judge Combs Greene to Judge Weisberg, who denied the motion for interlocutory certification).
• the defendants nevertheless filed notices of appeal to the DC Court of Appeals.
• after Mann served discovery, the defendants moved for a protective order and separately argued that their appeal divested the Superior Court of jurisdiction; the Superior Court held that, while it was “unclear whether the collateral order permits appeals in this case . . . Defendants’ appeals are not plainly frivolous or taken for the purposes of delay” and accordingly stayed all proceedings/discovery until the appeal was resolved.
Once the case arrived at the DC Court of Appeals, that Court promptly issued an order, directing the parties to explain why it had jurisdiction over the interlocutory appeal. The defendants/appellants joint response unsurprisingly argued that jurisdiction was available under the collateral order doctrine. Their brief was similar to briefs filed in other cases, including by Andrew Breitbart and Larry O’Connor in the Sherrod case (here, here and here); by Lanny Davis in the 3M case (here and here); by the DC Attorney General in the 3M case (here); and by Public Citizen and the ACLU in the Sherrod case (here).
Their position was supported by three amicus briefs: one by the ACLU; one by the Reporters Committee for Freedom of the Press and 19 other media organizations; and one by the District of Columbia. Each argued that the DC Court of Appeals should recognize a right to immediate interlocutory appeal under the collateral order doctrine.
Following the filing of those briefs, Mann filed a response, arguing that the collateral order doctrine did not support a right to immediate interlocutory appeal.
Last month, the DC Court of Appeals essentially dismissed the appeal as premature. According to the Court, “these appeals are hereby dismissed as moot because the trial court granted appellee’s motion to file his lodged amended complaint and docketed the amended complaint and appellants then filed new special motions to dismiss.”
In other words, because Mann had amended his complaint before the DC Superior Court ruled on the anti-SLAPP motions, the DC Court of Appeals held that the original complaint (which was the subject of the anti-SLAPP motions), has been superseded. Because the defendants had subsequently renewed their anti-SLAPP motions against the amended complaint, the DC Court of Appeals remanded the case for consideration of those motions. (Interestingly, when he stayed discovery during the appeal, Judge Weisberg wondered “why the appeal is not moot or, for that matter, why the motions to dismiss the complaint were not moot, because Plaintiff filed his amended complaint before Judge Combs Greene entered her order dismissing the original complaint”).
Last week, Judge Weisberg denied the anti-SLAPP motions to dismiss the amended complaint. Essentially adopting Judge Combs Greene’s reasoning, he found that “plaintiff has shown a sufficient likelihood of success on Counts I through VI of the amended complaint to survive defendants’ special motions to dismiss. . .”. He also refused to stay discovery, although he noted that, “[i]f defendants attempt another interlocutory appeal, the court will rule on any accompanying motion for a further stay.”
Two of the defendants (CEI and Rand Simberg) have already filed a notice of appeal. Given that Judge Weisberg stayed discovery when the last interlocutory appeal was taken, I would expect him to do so here.