After the DC Court of Appeals essentially invited a party to file an anti-SLAPP special motion to dismiss in a DC federal court diversity case, it took seven months for the Associated Press to accept the invitation. That motion apparently opened the floodgates, as three more parties have now filed anti-SLAPP motions in separate DC federal court cases.
In early August, Endeavor Robotics filed an anti-SLAPP special motion to dismiss a complaint filed by Robo-Team. Robo-Team’s complaint alleged that Endeavor, a Robo-Team competitor, together with Endeavor’s strategy/lobbying team (Sachem), circulated a memo on Capitol Hill that identified Robo-Team as a threat to US ground robotics technology, because it was allegedly funded by Chinese investors and is heavily controlled by Chinese ownership. The Sachem memo also asserted that Robo-Team might have violated ITAR regulations. Robo-Team’s complaint asserted causes of action for defamation, tortious interference, civil conspiracy and unfair competition.
Endeavor’s anti-SLAPP special motion to dismiss first argues that the DC anti-SLAPP statute applies in a federal court diversity action (because the court is bound to follow Mann, and not Abbas). Endeavor next argues that its speech is protected by the DC anti-SLAPP statute because it involves communications on issues “under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.” According to Endeavor, the issue of Chinese efforts to obtain US robotics industry knowledge is the subject of several hearings, proceedings and investigations. Endeavor also argues that its lobbying efforts, including the Sachem memo, constitutes “expression or expressive conduct that involves petitioning the government or communicating views to members of the public in connection with an issue of public interest.”
Endeavor argues that, having showed that the memo falls within the statute’s scope, Robo-Team cannot show a likelihood of success on its claims because, among other reasons: (1) the memo was protected by the privilege for unsolicited communications to a legislative body, the fair report privilege and the common interest privilege; (2) the statements in the memo were true or were protected opinions; and (3) Robo-Team has not shown any lost contract, customer or business opportunities.
Robo-Team’s opposition first argues that the DC Circuit’s Abbas decision controls. Robo-Team next argues that, because the DC anti-SLAPP statute requires a court to apply different procedures and burdens in deciding a motion, it cannot apply in federal court. Next, Robo-Team argues that the Sachem memo was directed primarily towards protecting Endeavor’s commercial interests, rather than commenting on or sharing information about a matter of public interest, and thus falls within the “commercial speech” exception to the DC anti-SLAPP statute (DC Code §16-5501(3)). Robo-Team similarly argues that the Sachem memo falls within DC Code §16-5505, because it was made for the purpose of promoting, securing or completing sales or commercial transactions in Endeavor’s goods or services, and the intended audience was an actual or potential buyer or customer. Finally, Robo-Team argues that it is likely to succeed on the merits or that it should be allowed discovery.
In a footnote, Robo-Team also argues that the DC anti-SLAPP statute violates its right to a jury trial because it allows a trial judge to decide issues of material fact, weigh evidence, and decide a plaintiff’s likelihood of success. This argument seems to ignore that, in Mann, the DC Court of Appeals specifically construed the DC anti-SLAPP statute in a way that avoids any Seventh Amendment concerns. Notwithstanding that decision, I would not be surprised if this argument triggers a motion to intervene by the DC Attorney General, to defend the constitutional attack on the statute.
Endeavor’s reply brief repeats that the DC anti-SLAPP statute provides substantive protections and that the Court must follow Mann, instead of Abbas, because it is the “most recent and authoritative state court interpretation of the Act, and it clearly and unmistakably renders the Abbas decision outmoded and inaccurate.” Responding to Robo-Team’s arguments that its speech falls outside the statute’s scope, because it was made in furtherance of Endeavor’s commercial interests, Endeavor argues that, because the purpose of its speech was to comment on an issue of public interest – Chinese industrial and cyber espionage – its motives are irrelevant.
Endeavor appears to be arguing that, because the speech was on a matter of public interest, the fact that Endeavor might benefit from the “speech” or that it had a motive for the “speech” was irrelevant. This position is crystallized in Endeavor’s response to Robo-Team’s §16-5505 argument. There, Endeavor argues that §16-5505 is not applicable because “[n]either the Sachem Memo nor any of the Congressional letters once mention Endeavor or any of its specific products, let alone any of Robo-Team’s products or services.” Endeavor thus attempts to distinguish between a commercial advertisement or commercial speech and speech that might have an effect on commerce.
The DC federal district court’s Farah decision seems relevant on this point. There, as you might remember, Farah argued that a satirical blog post by Esquire magazine was intended to harm his commercial prospects because, according to Farah, Esquire was a competitor. The court rejected this argument in a passage that is reminiscent of Endeavor’s argument:
Plaintiffs assert that WorldNetDaily.com is a commercial competitor to Hearst Communications, that Defendants’ statements were directed toward injuring Plaintiffs’ commercial interests, and thus that the Act does not apply. The text of the Blog Post belies this assertion. The target of the Blog Post’s satiric commentary was the Corsi Book, and Mr. Farah (as publisher) and Dr.Corsi (as author) were named in connection to the Corsi Book. There can be no doubt that the Corsi Book was a topic of public interest. It continued the argument that the President is not a natural-born American and is unqualified for office. . . . The Blog Post cannot be construed as speech directed toward protecting Defendants’ commercial interests. It was satirical comment on an issue of public concern.
Endeavor’s reply brief next argues that Robo-Team has not demonstrated – as it must – that it is likely to prevail on the merits. Finally, Endeavor argues that Robo-Team has not identified what specific discovery it needs to respond to Endeavor’s anti-SLAPP motion.
In my next post, I’ll discuss the anti-SLAPP motions filed by defendants in two other DC federal court cases.