A “David versus Goliath” battle is playing out in the DC Superior Court, with the DC anti-SLAPP statute in the role of the slingshot.
Our “David” is the Center for Defense Advanced Studies (“C4ADS”). According to an Amended Complaint it filed earlier this year, C4ADS is “a Washington, D.C. based non-profit organization dedicated to data-driven analysis and evidence-based reporting of global conflict and security issues.” In September 2012, C4ADS published a report titled “The Odessa Network: Mapping Facilitators of Russian and Ukrainian Arms Transfers.” Prominently mentioned in the report was Kaalbye Shipping International, which plays the role of Goliath in the subsequent litigation.
According to the Amended Complaint, following the report’s publication, Kaalbye, through its law firm, contacted C4ADS, sought to have it “‘repudiate’ what KAALBYE contended are ‘libelous statements’ contained in the Report,” and threatened to file suit. It alleges that Kaalbye, through its agents, also defamed C4ADS and interfered with its business relations. As a result, C4ADS sued Kaalbye and the alleged agents, seeking a declaratory judgment that the Report was not defamatory and for damages flowing from their conduct. Kaalbye’s Answer included a counterclaim for defamation, alleging that seven statements in the Report were false and defamatory.
C4ADS responded to the defamation counterclaim with an anti-SLAPP motion and companion 12(b)(c) motion. The anti-SLAPP motion argued that, because the Report concerned an issue under consideration by the government, and involved statements made “in connection with an issue of public interest” – i.e., the “transportation of ‘billions of dollars of weapons to embargoed conflict zones and US strategic competitors,’” – it was subject to dismissal under the anti-SLAPP statute unless Kaalbye could show that it was “likely” to prevail on the merits.
C4ADS argued that Kaalbye could not satisfy this burden because: (a) the alleged facts in the counterclaim did not show that C4ADS acted with the requisite fault and, in fact, the Report reflected that C4ADS acted prudently; (b) the challenged statements were protected opinion or substantially true; (c) any implications Kaalbye drew from the Report were “explicitly disclaimed” by the Report itself; (d) at least one of the challenged statements (that Kaalbye required armed guards at its place of business), even if false, did not make Kaalbye appear “‘odious, infamous, or ridiculous,’” as required to state a claim for defamation; and (e) Kaalbye had not plausibly alleged that it was damaged as a result of the challenged statements.
Kaalbye’s opposition brief argued that “C4ADS published statements as research-based truths” and could not now avoid liability by arguing that they were opinions. It argued that “many of the false statements in the Report about Kaalbye rely on disreputable foreign news sources, not data, court records, or reliable factual research” and that C4ADS “became aware of shortcomings in its work within days of publishing it” because, “[a] few days after publishing the original version of the Report, C4ADS removed the Report from its website, excised a number of pages that referred to certain companies or individuals, and added legal disclaimers to protect itself from claims it had made false accusations of illegal conduct.” C4ADS reply brief, unsurprisingly, rejected these arguments.
A critical – and vigorously disputed – issue in the case is what Kaalbye must show in order to avoid dismissal.
Kaalbye argues that it “need demonstrate only that the complaint (1) is legally sufficient and (2) is supported by prima facie evidence” and that it “‘need only establish that its claim has minimal merit to avoid being stricken as a SLAPP.’” On the other hand, C4ADS argues that Kaalbye “needs more than a ‘prima facie’ showing. They need to show they are ‘likely to succeed.’”
C4ADS has the better of this argument. The DC anti-SLAPP statute says that, once the moving party “makes a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest, then the motion shall be granted unless the responding party demonstrates that the claim is likely to succeed on the merits, in which case the motion shall be denied.”
So, while the statute speaks of a “prima facie” showing, that is the relatively low standard demanded of the moving party. Once it is satisfied, the statute requires the opposing party to show it is “likely to succeed” on the merits. Whatever “likely to succeed means” (moving parties in other cases have argued that it is a “daunting” burden, but courts have generally relied upon California’s probability standard), it is not the same as requiring a “prima facie” case, or the DC Council would have used the same statutory language.