There have been numerous articles about the long-awaited DC Court of Appeals’ opinion in Michael Mann’s libel suit against the National Review and Competitive Enterprise Institute, including in the Washington Post, Buzzfeed, Inside Higher Education, and National Review. While there is much to analyze, consider and discuss in the 105-page opinion, as it relates to the DC anti-SLAPP statute, there are three specific takeaways.
First, the DC Court of Appeals held that the denial of an anti-SLAPP special motion to dismiss is immediately appealable. As readers of this blog know, courts around the country have been wrestling with this issue.
This part of the decision provides anti-SLAPP movants with an important right to immediate appellate review, before incurring the time and expense of litigation. Critics will argue, however, that it will only delay cases, as defendants make anti-SLAPP motions, discovery is stayed, the motion is denied, an appeal is taken, and the case languishes. Indeed, that has been Mann’s argument in his case.
This also means that several other appeals from denials of anti-SLAPP special motions to dismiss will now be heard by the DC Court of Appeals. (The DC Court of Appeals had stayed those other appeals pending resolution of the Mann appeal).
Second, the DC statute provides that, if the moving party shows that the claim “arises from an act in furtherance of the right of advocacy on issues of public interest,” the burden shifts to the party opposing the motion to “demonstrate that the claim is likely to succeed on the merits.” The Court interprets the phrase “demonstratethat the claim is likely to succeed on the merits” to mean “whether a jury properly instructed on the law, including any applicable heightened fault and proof requirements, could reasonably find for the claimant on the evidence presented.” The Court rejects the argument that this standard allows the trial court to weigh evidence or make credibility determinations.
Earlier this month, a Minnesota intermediate appellate court held that state’s anti-SLAPP statute “violates the non-moving party’s constitutional right to a jury’s trial by requiring a court to make a pretrial factual determination that the non-moving party has produced clear and convincing evidence to support his claim.” The DC Court of Appeals’ agreed that “[a]n interpretation that puts the court in the position of making credibility determinations and weighing the evidence to determine whether the case should proceed to trial raises serious constitutional concerns because it encroaches on the role of the jury.” Its interpretation avoids this result.
Third, the DC Court of Appeals acknowledged that, in Abbas v. Foreign Policy Group, the DC Circuit held that the DC anti-SLAPP statute did not apply in a federal court diversity case. According to the Mann court, part of the Abbas court’s reasoning was that the burden imposed by the DC anti-SLAPP statute was materially different from the burden imposed by Fed. R. Civ. P. 56. The Mann court now expressly holds that the burdens are the same, and then states that “[t]his court’s interpretation of the standard applicable to the special motion to dismiss under District of Columbia law will no doubt factor into future analysis of the dicta in Abbas concerning the applicability of the Anti-SLAPP Act in litigation brought in federal courts.”
This seems to me to be a direct challenge to the DC Circuit’s conclusion that the DC anti-SLAPP statute does not apply in federal court. It remains to be seen if a party will now seek to invoke the DC anti-SLAPP statute in a diversity case and, when Abbas is raised in opposition, argue that the Mann decision suggests that the Abbas decision should be revisited. As always, stay tuned.