In January, I wrote about the DC Court of Appeals’ then-recent Mann decision, and specifically about the Court’s response to the DC Circuit’s Abbas decision, which held that the DC anti-SLAPP statute could 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.”
In my January post, I wrote that the DC Court of Appeals’ statement seemed “to be a direct challenge to the DC Circuit’s conclusion that the DC anti-SLAPP statute does not apply in federal court,” and wondered “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.”
Wonder no more. Last Monday, the Associated Press filed an anti-SLAPP motion (and a companion Rule 12(b)(6) motion) in the federal court diversity case brought by Oleg Deripaska. There, Deripaska is alleging that a March 22, 2017 Associated Press article defamed him “by direct statements and by implication.”
The AP’s anti-SLAPP brief argues that the Mann decision is an “intervening express clarification of the Act by the D.C. Court of Appeals” that requires the Court to consider whether Abbas “remains good law.” The brief cites a recent decision from Judge Howell, in which she held that, when the DC Court of Appeals “has spoken clearly and unmistakably to the current state of D.C. law, its views must govern,” and argues that “[t]he Mann decision represents an intervening and controlling interpretation of D.C. law to which this Court must defer.” The brief argues that applying the DC anti-SLAPP statute in federal court also has the salutary effect of eliminating forum-shopping, which has already occurred in at least one other case.
The AP’s anti-SLAPP brief persuasively argues that the suit arises from an act in furtherance of the right of advocacy on issues of public interest (because it involves statements made about an issue under consideration by a legislative body, because it was made in a forum open to the public in connection with an issue of public interest, and/or because it involved communicating views to members of the public in connection with an issue of public interest).
The AP’s anti-SLAPP brief, and a companion Rule 12(b)(6) brief, argue that Deripaska is unlikely to succeed on the merits because certain of the challenged statements are not “of and concerning him”; others are protected opinion; the defamatory implication alleged in the complaint is contradicted by other statements; or a fair reading of the article does not reasonably convey the defamatory implication alleged. The AP also argues that Deripaska is, at a minimum, a limited-purpose public figure and that his complaint did not plead facts showing that the AP published the article with actual malice.
It will be interesting to see how the Court handles the anti-SLAPP motion. If it is inclined to dismiss the complaint, it could grant the Rule 12(b)(6) motion and avoid deciding the anti-SLAPP motion. Otherwise we should get a ruling from a DC federal court on whether the DC anti-SLAPP statute is again available in a diversity case in this forum. As always, stay tuned.