Last year, I blogged about the Wilkenfeld v. Steward Partners complaint filed in DC Superior Court, where Ari Wilkenfeld was asking the court to stop an arbitration from proceeding against him, because he believed the defamation claim therein was a SLAPP. I thought that Wilkenfeld would have a difficult time asking a Superior Court judge to use the DC anti-SLAPP statute to stop an arbitration. I was correct.
The defendants responded to Wilkenfeld’s Superior Court complaint with an extended brief, arguing that it failed for multiple reasons including: (1) the arbitrator had exclusive jurisdiction over the dispute; (2) the DC anti-SLAPP statute did not apply to a claim in arbitration; (3) the dispute was subject to Delaware law (pursuant to a choice-of-law provision in the arbitration agreement), and Delaware’s much narrower anti-SLAPP statute did not reach the conduct at issue here; (4) the suit did not arise from advocacy on issues of public interest; and (5) they were likely to prevail on the merits.
Wilkenfeld’s opposition brief asserted that the defendants had a “basic misunderstanding” of his claim. According to Wilkenfeld, because the defendants’ AAA complaint was a “claim,” it was subject to the DC anti-SLAPP statute. The remainder of Wilkenfeld’s opposition brief attempted to address the many arguments raised by the defendants. While there were moments of clarity (arguing why the arbitration agreement should not apply to Wilkenfeld or why the defamation claim might be covered by the litigation privilege), these were few and far between.
The defendants’ reply brief was succinct and unsparing:
Plaintiff also does not dispute – as he cannot – that this Court has never applied the D.C. Anti-SLAPP law to a claim filed exclusively in arbitration. Thus, even if his Complaint were properly before this Court, it would still have to be dismissed.
The defendants also noted that, while Wilkenfeld’s opposition brief argued there was no other jurisdiction in which he could raise his anti-SLAPP defense, he had, in fact, filed an anti-SLAPP special motion to dismiss in the pending arbitration, that raised the same arguments as in his Superior Court complaint.
Earlier this year, the Superior Court issued an order in which it agreed with Wilkenfeld that there was a misunderstanding about the DC anti-SLAPP statute, but attributed this misunderstanding to Wilkenfeld:
The complaint seeks a declaratory judgment from this Court that the defendants’ defamation claim against the plaintiff, which is in arbitration pursuant to Delaware law, is barred by D.C.’s Anti-SLAPP law, D.C. Code §16-5501 et seq. To be clear – there is no claim pending by the defendants against the plaintiff in D.C. Superior Court. In other words, the plaintiff seeks to use the Anti-SLAPP law as an offensive weapon to defeat an action that is pending in another jurisdiction.
In this Court’s view, the plaintiff misunderstands the nature and scope of the Anti-SLAPP law. It is a defensive, procedural device: it can be used by a defendant to obtain a dismissal of a defamation claim that is pending in this court on the ground that the claim is intended to suppress the defendant’s advocacy on public interest issues. The statute does not create an independent cause of action, and it cannot be used, in any event, against a claim that is pending somewhere else. (Emphasis in original)
And so ends this case.