In February, I wrote about Fridman v. Bean LLC, where “three international businessmen” claim they were defamed by certain statements in one of the reports comprising the “Trump Dossier.” The defendants (Fusion GPS and Glenn Simpson, who allegedly retained Christopher Steele to research any Russian connections to Trump) filed an anti-SLAPP special motion to dismiss the suit.
The plaintiffs have filed their opposition to the anti-SLAPP special motion to dismiss, and the defendants have filed their reply brief. Beyond the usual sparring over whether Mann means the statute can again apply in a federal court case, both briefs raise interesting arguments worth exploring in more detail.
First, the plaintiffs note the defendants did not file their anti-SLAPP special motion to dismiss until 48 days after they were served with the Amended Complaint. This is too late, say the plaintiffs, citing the text of the anti-SLAPP statute and the DC Circuit’s Sherrod decision, where that court held a motion filed beyond the 45 day deadline was too late.
In response, the defendants first argue they timely filed an anti-SLAPP special motion to dismiss the original complaint, so that “the Plaintiffs’ filing an Amended Complaint making the same claim cannot erase the Defendants’ prior satisfaction of the statutory deadline.” This argument strikes me as weak. An amended complaint supersedes the original complaint, rendering it (and any motions made against it) a legal nullity. I don’t see how a party can argue that, because it timely moved against the original complaint, that means its later (untimely) response to the amended complaint is somehow timely.
Tacitly acknowledging the weakness of their first argument, the defendants pivot and assert that, in Sherrod, the DC Circuit expressly noted (in footnote four), that those defendants never argued whether the district court could, on Erie grounds, disregard the 45-day limitations period. The defendants argue the court here can do just that because, according to them, the 45-day deadline is a “procedural requirement of state law which this Court need not apply.” So, the defendants argue, the Federal Rules of Civil Procedure and the Court’s inherent power to manage its docket allow it to extend the deadline. It will be interesting to see how Judge Leon deals with this more thought-provoking argument.
The plaintiffs’ opposition brief also argues the defendants cannot invoke the DC anti-SLAPP statute because they have denied even making the statements at issue:
Defendants cannot rely on allegations that they dispute to make the prima facie showing required by the Act to shift the burden to Plaintiffs. Defendants must meet their burden of proof with affirmative, consistent statements, which they have failed to do. Absent an affirmative claim that their statements were made in a public forum or involved communicating to the public, Defendants’ motion should be denied.
The defendants responded to this argument with the back of their hand: “[t]here is no requirement in the Act or elsewhere that Defendants must concede the truth of Plaintiffs’ allegations in order to avail themselves of the Act’s protection. Instead, the Act intentionally provides a procedure – appropriately called a special motion to dismiss – that avoids the defendant first having to answer the complaint. . . . Here, the Plaintiffs themselves have pled facts sufficient for the Court to determine that the ‘claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest.’ D.C. Code § 16-5502(b).”
This issue was the subject of a recent appellate opinion in Kansas, under that state’s nascent anti-SLAPP statute. In T&T Financial of Kansas City v. Taylor, the plaintiff alleged Taylor made false and defamatory statements on a blog and in emails. Taylor moved to strike under the Kansas anti-SLAPP statute. At the same time, she submitted an affidavit denying authoring the blog post or emailing it to others. The trial court held that, by denying making the statements at issue, Taylor could not use the anti-SLAPP statute:
Defendant moved to strike under the [statute], and at the same time filed an affidavit denying that she wrote the Tumblr posts or e-mails in question. A defendant may only bring a special motion to strike the claim if the claim is based on or otherwise relates to a party’s exercise of free speech. Because Defendant’s affidavit flatly denies that she made the defamatory comments, the plain language of the statute prevents her from succeeding on the motion. Accordingly the motion is DENIED.
The appellate court reversed, holding the trial court’s “if you deny making the statement, you can’t use the statute” reasoning was wrong:
We interpret K.S.A. 2016 Supp. 60-5320(d) to mean that a party bringing a motion to strike has the initial burden of showing that the claims in the plaintiff’s petition implicate a protected right under the statute, and it is irrelevant whether the defendant admits or denies making the statements in question. (emphasis added).
The reasoning of the Kansas appellate court aligns with the defendants’ arguments here: while it is the defendants’ burden to show the claim arises from conduct within the scope of the statute, the defendant needs not admit the allegations in the complaint to use them to satisfy its prima facie case.
However, earlier this month, a California appellate court seemingly accepted the arguments made by the plaintiffs here. In Hui v. Huang, Hui alleged that Huang made several statements that defamed him. Huang filed an anti-SLAPP motion, supported by a declaration in which she stated she did not make the statements. The trial court concluded that Huang’s denial, coupled with her failure to show the statements concerned a matter of public interest, did not entitle her to relief.
The appellate court affirmed. It held that it was Huang’s burden, in the first instance, to establish she engaged in activity protected under the anti-SLAPP statute. It agreed that Huang failed to carry this burden because she had not shown the statements were about an issue of public interest or about a public figure. The court also suggested that Huang’s denial prevented her from satisfying her burden: “one does not make a prima facie showing that she engaged in protected activity when one denies ever doing so.”
It will be interesting to see how Judge Leon reacts to these arguments. Given that he was the judge who denied the Sherrod defendants’ anti-SLAPP special motion to dismiss because, in part, it was filed too late, the fact the defendants’ motion was filed beyond the 45-day deadline may be enough to doom their motion (to say nothing of the fact that three of Judge Leon’s colleagues have held the statute does not apply in federal court, even after Mann). As always, stay tuned.