Another Superior Court Judge Dismisses SLAPP Suit

In the quintessential SLAPP suit, a large, well-heeled plaintiff (typically a corporation) sues an individual for something he/she said, which offends the plaintiff. The goal is to punish the speaker for the speech, so that he or she is silenced, and a message is sent to others to stay quiet, or risk the same fate. A reporter recently argued that he was the victim of a SLAPP; the court granted his special motion to dismiss.

Earlier this year, Jose Gallego, a journalist working for El Espanol, published an article in which he revealed that the niece of Spain’s economy minister was working as the General Secretary at the Spanish embassy in Washington DC. Gallego’s first article reported that the niece – Maria Pedrosa de Guindos – was married to Gustavo Frech Barriero, who was listed in the database of the Virginia State Corporation Commission as the director of JAP, a home improvement and general contracting firm owned by Jesus Anton Perez. Gallego’s article included that Frech claimed the information in the database was a “mistake.” The same article disclosed that several public contracts had been awarded by Spain’s Ministry of Foreign Affairs to JAP.

After Gallego’s first article was published, he learned that Ms. Pedrosa de Guindos was being removed from her position at the embassy. Gallego published a second article about this development. Gallego then allegedly learned about a lawsuit brought by Lofft Construction, Inc. against JAP and Frech. In that suit, Lofft alleged that Frech, while working for Lofft, had diverted work away from Lofft, for his own benefit and that of JAP. Gallego authored a third article in which he reported on the claims of “misappropriation and conspiracy to acquire possible business” in the Lofft suit.

Less than one month after the third article was published, JAP, Frech and Perez sued Gallego for defamation and conspiracy to defame. In response, Gallego filed an anti-SLAPP special motion to dismiss the suit. Gallego argued that the suit arose from his reporting on the Lofft v. JAP suit, and thus fell within the scope of the statute (which covers statements made in connection with an issue under condition by a judicial body). Gallego also argued that, because his articles were published on the internet about a public figure, they were covered by the statute, which applies to statements made in a place open to the public or a public forum in connection with an issue of public interest. Gallego also argued that the statute applied to the suit because it was based upon his communicating views to members of the public in connection with an issue of public interest (i.e., the issuance of public contracts for projects at the Spanish Embassy to companies with familial ties to the Embassy and the Spanish government).

Gallego next argued that the plaintiffs could not show that they were likely to succeed on the merits of their claims. First, Gallego argued, the plaintiffs could not show that the challenged statements were materially false because his use of the word “malversacion” in his third article was consistent with the allegation of “misappropriation” in the Lofft suit. Gallego argued that, in the context of a civil suit, the inference reached by the plaintiffs (that readers would conclude that they had been charged with embezzlement) was unreasonable.

Second, Gallego argued that, because both JAP’s 2016 annual report and a search of the Virginia State Corporation Commission website listed Frech as a JAP director, this statement was true. Gallego added that both Frech and Perez admitted that Frech was listed as a JAP director in the publicly-available documents, but claimed this was an administrative error (which Gallego included in his reporting). Gallego argued that, even if Frech was not a director, the statement was not defamatory because it did not make him appear “odious, infamous, or ridiculous.”

Third, Gallego argued that it was factually true that Perez was named in the Lofft suit, that Perez was implicated by the allegations made in that suit and that the Lofft suit alleged that Frech worked to deprive Lofft of business. For this reason, Gallego additionally argued that his reporting was protected by the judicial proceedings and fair report privileges.

Finally, Gallego argued that plaintiffs are, at a minimum, limited-purpose public figures who did not plead facts showing that Gallego made the challenged statements with actual malice. Gallego accordingly argued that the Court should dismiss the complaint with prejudice and award him his fees.

The plaintiffs’ opposition was, as Gallego later argued “difficult to follow, at best, and incoherent, at worst.” It argued that the Lofft v. Frech suit was “expressly directed toward protecting Lofft’s private, economic interests,” and thus fell outside the scope of the statute; that the statute did not apply because Gallego’s “fast and loose reporting” asserted or implied “false facts that are defamatory”; and because they were likely to succeed on the merits.

Gallego’s reply brief aimed to refocus the court on the relevant issues: (1) the DC anti-SLAPP statute applied to this case; (2) he accurately reported that the Lofft v. Frech suit included a claim for “misappropriation”; (3) Frech appeared as a director of JAP in publicly-available documents, meaning this statement was not false; and (4) Perez was named in the Lofft suit, so this statement was not false. Gallego also argued that the challenged statements were privileged as a matter of law, and that plaintiffs had not pled actual malice in support of their claims.

The plaintiffs then filed a motion for “targeted discovery” and requested that the court conduct an evidentiary hearing before ruling on Gallego’s special motion to dismiss. That request became moot (or was implicitly rejected) when the court granted Gallego’s special motion to dismiss.

The court first held that the statements in the third article, about the Lofft suit, were covered by the anti-SLAPP statute because they were “written statements made in connection with an issue under review by a judicial body.” The court explained that “[t]he statements are not removed from the Anti-SLAPP Act’s protection merely because defendant Espina summarized or repeated the facts of the judicial proceeding.” The court held that plaintiffs had not shown that they were likely to prevail on the merits of this claim because there was no evidence that the challenged statements in the third article were false and defamatory because Perez appeared in the Lofft v. Frech suit and that complaint included claims for misappropriation and conspiracy.

The court also held that Gallego was entitled to dismissal of the claims arising from the challenged statements in the first article, albeit under Rule 12(b)(6), because there was nothing false or defamatory about the statement that Frech was listed as a director in publicly-available records.

My Two Cents: this suit looked, smelled and sounded like a SLAPP, and the Superior Court correctly granted the special motion to dismiss. While the defendants in the Lofft v. Frech suit might have been unhappy that their squabble was the subject of Gallego’s reporting, that sometimes occurs in this country.

Leslie Machado

About: Leslie Machado

Mr. Machado counsels and advises a diverse range of clients on various areas of law. He is also an experienced litigator, having tried cases to verdict in state and federal courts. View all posts by Leslie Machado
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