Last October, I wrote about the Personal Care Products Council’s interesting anti-SLAPP motion, filed in a DC Superior Court case. There, the plaintiff (Simpson) alleged that she developed ovarian cancer by using talcum powder. In addition to suing talc manufacturers and suppliers, she sued PCPC, alleging that it submitted information to governmental agencies about talc’s safety that was “biased” and was part of a campaign to “prevent the regulation of talc and to mislead the consuming public about the true hazards of talc.”
Earlier this year, the Superior Court granted PCPC’s anti-SLAPP special motion to dismiss in an oral ruling from the bench. The ruling is interesting because, as far as I am aware, it is the first decision to apply the Court of Appeals’ Mann decision.
The Superior Court first held that PCPC had satisfied its burden of showing that the suit arose from an act in furtherance of its right of advocacy on issues of “public interest.” Although Simpson argued that PCPC could not be said to be “speaking” about issues in the public interest because, when it “spoke,” it was representing the views of its members and their commercial interests, the court rejected this argument:
the court distinguishes between when a trade association is promoting a specific product or the benefits of a specific product versus when a trade association is speaking more generally about products and the health and safety of those products as opposed to a specific commercial product named.
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Plaintiff’s complaint does not allege that PCPC made any representations regarding a particular product, only about the safety of talc in general. Furthermore, PCPC is a nonprofit trade association. It does not manufacture, design or sell any products. As a result, PCPC does not have, this Court concludes, a commercial interest to protect.
The court agreed with PCPC that its submission of scientific reports to government agencies, for which it was being sued, qualified as an act in furtherance of the right of advocacy under the statute. It held that PCPC’s release of information about talc to the public also qualified as an act in furtherance of the right of advocacy. As such, the court found that PCPC had established a prima facie case, shifting the burden to Simpson to show that she was likely to prevail on the merits.
With respect to Simpson’s burden, the Superior Court expressly followed the Court of Appeals’ recent interpretation of the standard in Mann, holding that Simpson needed to show “whether a jury properly instructed on the law, including any applicable heightened fault and proof requirements could reasonably find for [Simpson] on the evidence presented.” The court held that Simpson had not carried her burden with respect to her negligence claim: although Simpson alleged that PCPC owed her a duty by promulgating industry standards, and that it breached this duty by failing to ensure member compliance with its standards, an unrebutted affidavit from PCPC stated that it had no authority to regulate its members, and thus could not have prevented the sale of talcum-containing products. The court held that Simpson’s fraud and conspiracy claims were also fatally deficient.
Simpson argued that she was entitled to discovery before the court ruled on PCPC’s anti-SLAPP motion to dismiss. The court acknowledged that the statute allows targeted discovery, but found that Simpson had not explained what targeted discovery she needed to defeat PCPC’s motion. As such, it denied Simpson’s discovery request and, instead, granted PCPC’s special motion to dismiss.
The court then turned to the issue of attorney’s fees. Simpson’s counsel argued that this case was a “special circumstance” under which the court should not grant attorney’s fees:
plaintiff in filing its complaint had no idea that a motion to dismiss based on the Anti-SLAPP statute would be filed, did not anticipate this issue. And we are not specifically filing this lawsuit with the SLAPP provisions in mind.
Referencing the Court of Appeals’ Burke II decision, in which the Court held that a successful anti-SLAPP movant was presumptively entitled to recover its fees, the Superior Court held that it would award PCPC its attorney’s fees.
My takeaway: This case demonstrates the power of anti-SLAPP statutes. Simpson essentially filed a products liability lawsuit that, among other allegations, claimed the industry trade association had some role in misinforming the public and government about talc. By invoking the anti-SLAPP statute, PCPC was able to stop all discovery and introduce evidence contradicting the allegations in the complaint. This was central to the court granting PCPC’s motion, and awarding it its fees.