We are one step closer to a decision from the DC Circuit on whether its Abbas ruling remains good law following the DC Court of Appeals’ Mann decision. The plaintiff in the Deripaska v. Associated Press case has appealed the Rule 12(b)(6) dismissal of his suit. In response, the Associated Press filed a notice of cross-appeal, presumably to argue that the district court erred in concluding that it was bound to follow Abbas.
In the meantime, defendants continue filing anti-SLAPP special motions to dismiss in DC diversity actions. In Cockrum v. Donald J. Trump for President, Inc., the plaintiffs alleged that the Trump campaign and Roger Stone “entered into an agreement with other parties, including agents of Russia and WikiLeaks, to have information stolen from the DNC publicly disseminated in a strategic way that would benefit the campaign to elect Mr. Trump as President.” They sued for public disclosure of private facts, intentional infliction of emotional distress, and a violation of 42 U.S.C. 1985(3).
The Trump campaign and Stone filed virtually identical anti-SLAPP special motions to dismiss, arguing that the DC anti-SLAPP statute applies in federal court and that the plaintiffs could not show a likelihood of success on the merits. The briefs argue that the DC anti-SLAPP statute “replicates the standard for summary judgment established by Federal Rule of Civil Procedure 56,” citing to Mann (where Trump’s attorney in this suit, Michael Carvin, represents one of the defendants). They acknowledge that the DC anti-SLAPP statute “protects defendants more than Rule 56 does,” by requiring the court to decide the motion before discovery, and that it also provides for the recovery of attorneys’ fees, but argues that these differences are more apparent than real (because the Federal Rules also allow dismissal before discovery and allow for the recovery of fees in certain circumstances).
The defendants also argue that applying the DC anti-SLAPP statute in federal court avoids “inequitable administration of state law and discouraging forum-shopping,” which are “the “twin aims of the Erie rule.” Although the briefs do not mention it, readers of this blog are aware of at least one example of blatant forum shopping that occurred after the federal court held that the statute does not apply in a diversity case.
Turning to the merits, the defendants argue that their alleged conduct giving rise to the suit – the “publication of DNC emails on WikiLeaks” “right before the Democratic National Convention” – falls within the statute’s scope because it involved “any written or oral statement made . . . in a place open to the public or a public forum in connection with an issue of public interest” as well as “any other expression or expressive conduct that involves . . . communicating views to members of the public in connection with an issue of public interest.”
The defendants next anticipate a possible argument by the plaintiffs: that their emails were purely private, including one plaintiff’s social security number, address, and phone number; information about another plaintiff from which his grandparents deduced his sexual orientation; and the third plaintiff’s social security number, address, phone number, and banking relationships, and thus were not “in connection with an issue of public interest.” The defendants argue that the statute does not operate so narrowly.
Instead, they argue, the statute “turns on the character of the defendant’s speech as a whole, not on the character of each individual statement that the defendant utters.” They also argue that “the Act turns on the primary purpose of the defendant’s speech, not on its ancillary effects,” and that nobody would argue the publication “was ‘directed primarily toward’ exposing Comer’s sexual orientation or Cockrum and Schoenberg’s financial information.” And, they argue, “the Act’s language is in all events so sweeping that it encompasses all of the emails published by WikiLeaks.” The defendants finally argue that, because the anti-SLAPP statute applies to the complaint, and because plaintiffs have not carried their burden of showing a likelihood of success on the merits, they are entitled to dismissal.
The briefs acknowledge that, in Deripaska, Judge Huvelle held that she was bound to follow the “clear guidance of the D.C. Circuit,” which forecloses application of the DC anti-SLAPP statute in a federal court diversity suit. They argue that they are nevertheless filing their anti-SLAPP special motions to dismiss “to preserve the anti-SLAPP defense, for appeal or in case of other intervening developments.”
The plaintiffs’ opposition brief focuses on the Abbas and Deripaska opinions and argues that, even after Mann, the DC anti-SLAPP statute cannot apply in a federal court diversity action. It argues that, even in Mann, the court “called attention to different burden-shifting requirements in the DC and federal procedural regimes” so that “the reasoning in Mann actually supports Abbas’s holding regarding the procedural irreconcilability of the Anti-SLAPP Act and the Federal Rules.”
The opposition brief next argues that, even if the DC anti-SLAPP statute could apply in another federal court diversity suit, it does not apply in this suit, because it does not arise from an act in furtherance of the right of advocacy on issues of public interest:
This suit is about the Trump Campaign and Roger Stone’s participation in a conspiracy to publicize private information about private individuals in the course of interfering in the 2016 presidential election. The Trump Campaign and Roger Stone are free to speak in political and policy debates however they would like; but the Anti-SLAPP law provides no protection to those who conspire to make public stolen private information.
The Trump reply brief and Stone reply brief repeat their arguments that Mann changed the legal landscape and effectively overruled Abbas and that the DC anti-SLAPP statute applies to this case. Trump’s reply brief also argues that the court should reject the plaintiff’s plea for discovery.
Meanwhile, over in the chambers of Judge Mehta, another anti-SLAPP special motion to dismiss is pending. There, in a one-count defamation complaint, Libre by Nexus alleged that a July 23, 2016 Buzzfeed article falsely reported that the Immigration and Customs Enforcement Homeland Security Investigations unit had investigated Libre “for allegedly targeting undocumented immigrants in custody and fraudulently charging them a fee for services.” According to the Libre complaint, the ICE investigation was not “closed due to lack of evidence,” as Buzzfeed reported. Instead, Libre alleges, ICE stated that it had “no legal authority to investigate or prosecute” companies like Libre.
Buzzfeed filed an anti-SLAPP special motion to dismiss which first argued that, after Mann, the DC anti-SLAPP statute applies in a federal court diversity case. Buzzfeed next argued that the statute applies to the case because it is based on a statement made in a place open to the public (the Internet), in connection with an issue of public interest (health or safety, economic or community well-being). Buzzfeed argued that Libre could not show that its claim was likely to succeed on the merits because the challenged statements in the Buzzfeed article: (1) are protected by the fair report privilege; (2) are substantially true; or (3) are not reasonably capable of any defamatory meaning. Buzzfeed argues that Libre’s claim additionally failed because it did not plead facts plausibly suggesting that Buzzfeed published the challenged statements with actual malice.
Libre’s opposition brief argues that Buzzfeed’s interpretation of Mann and Abbas is directly contradicted by Deripaska, and urges the court to follow Deripaska. Libre argues, in any event, that the document upon which Buzzfeed’s fair report privilege rests is incomplete, unauthenticated and is not properly before the court; that Buzzfeed’s article was not a fair and accurate recitation of the underlying document; and that, by ignoring ICE’s statement that it had “no legal authority to investigate or prosecute” companies like Libre, Libre plausibly pled actual malice.
Buzzfeed’s reply brief persuasively argues that the underlying document is properly before the court and that it fairly and accurately characterized that document in its article. Buzzfeed notes that Libre did not address Buzzfeed’s other arguments why Libre’s defamation claim failed as a matter of law. Finally, Buzzfeed argues, Libre has not shown why, after Mann, the DC anti-SLAPP statute should not apply in a federal court diversity case, other than citing to Deripaska, which Buzzfeed continues to argue was incorrectly decided.
My two cents: the Cockburn case is assigned to Judge Huvelle, who was the judge in the Deripaska case who rejected the arguments why the DC anti-SLAPP statute should now apply in a federal court diversity case (after Mann). There is no reason to believe she will reach a different conclusion in this case. The Libre case, on the other hand, smells like a SLAPP. It will be interesting to see if Judge Mehta sees it that way, notwithstanding Abbas.