Waaaaaaay back in early 2012, after a defendant (Huntington) filed a counterclaim against a plaintiff (Newmyer) for defamation, false light and related torts, Newmyer responded by filing an anti-SLAPP motion (you can read more about the case here). Newmyer’s anti-SLAPP motion was denied by the Superior Court judge, who found that it was filed too late (although he stated that, if he believed the counterclaim was a true SLAPP, “the court might very well conclude that the ameliorative purpose of the Act requires a more flexible interpretation of the forty-five day framework”).
The Superior Court did not need to wrestle with that question, however, because it concluded that there was “no indication” that “this is a claim designed to silence or punish one for speaking out on issues of public importance.” According to the Superior Court, “it is incredulous that Mr. Newmyer would view Dr. Huntington’s defamation counter-claim as an offensive weapon of intimidation” when, in the court’s view, “there is no economic bullying here by Dr. Huntington and his claims are not likely to deter Mr. Newmyer from being heard on his contentions.” The Superior Court allowed Huntington to recover his fees, concluding that the anti-SLAPP motion was “baseless and, therefore frivolous.”
Newmyer immediately appealed the denial of his anti-SLAPP motion to the DC Court of Appeals, which dismissed the appeal in a per curiam order that stated:
The subject order is not appealable under the collateral order doctrine, see Cohen v. Beneficial Loan Corp., 357 U.S. 541, 546 (1947), and the District’s anti-SLAPP statute does not provide for interlocutory review.
Last year, the entire case finally reached the DC Court of Appeals (after discovery and cross motions for summary judgment). In late December 2015, the Court affirmed the Superior Court’s resolution of the anti-SLAPP motion:
We affirm the trial court’s denial of the motion and award of attorney’s fees for two reasons. First, Mr. Newmyer filed his motion on February 29, 2012, more than forty-five days after Dr. Huntington filed his counter-complaint on May 12, 2011. See D.C. Code §16-5502(a) (placing a forty-five day limit on such claims). Second, Mr. Newmyer failed to establish any issue of public interest. See D.C. Code §16-5501(3) (2012 Repl.) (stating that an “‘[i]ssue of public interest’ means an issue related to the 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” and “shall not be construed to include private interests.”).
My takeaway: the decision shows why there should be an immediate right to appeal the denial of an anti-SLAPP motion. Anti-SLAPP statutes protect parties from “expensive and time consuming discovery” that is often part of libel litigation. If the DC Court of Appeals had decided, in December 2015, that Newmyer’s anti-SLAPP motion should have been granted, it would have come far too late for Newmyer, who had to litigate the case for over three years, with its enormous attendant costs. Making a party go through the entire lawsuit before being able to secure appellate review seems inconsistent with the purpose of the statute: avoidance of potentially unnecessary litigation.