If a party moving under the D.C. anti-SLAPP statute shows the suit arises from a statement made in connection with “an issue under consideration or review by a legislative, executive, or judicial body,” does the statement also need to satisfy the “issue of public interest” definition in the statute? That question is central to a suit pending in DC Superior Court.
Last year, three plaintiffs sued Coca-Cola and the American Beverage Association, alleging that certain statements the defendants made about sugar-sweetened beverages and their effects on obesity – including that a “calorie is a calorie,” “there’s nothing unique about beverage calories when it comes to obesity or any other health condition,” “[s]ugar isn’t the enemy, the problem is calories,” that the calories in sugar-sweetened beverages could be offset by extra physical activity, and that sugar-sweetened beverages were a source of hydration – were misleading and deceptive, violated the D.C. Consumer Protection Act, and should be stopped.
In response, both parties filed anti-SLAPP special motions to dismiss (I’ll discuss the ABA motion in another post). Coca-Cola’s anti-SLAPP special motion to dismiss (which attacked statements it allegedly made at scientific conferences and to the media, but not statements allegedly made as part of advertisements), argued it carried its prima facie burden to show the claim arose from an “act in furtherance of the right of advocacy on issues of public interest,” because the statements were made “[i]n connection with an issue under consideration or review by a legislative, executive, or judicial body.”
Recall that a party moving under the DC anti-SLAPP statute first needs to show the claim arises from an “act in furtherance of the right of advocacy on issues of public interest.” DC Code §16-5502(b). DC Code §16-5501(1), in turn, defines “Act in furtherance of the right of advocacy on issues of public interest” to mean:
(A) Any written or oral statement made: (i) In connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; or (ii) In a place open to the public or a public forum in connection with an issue of public interest; or (B) Any other 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. (Emphasis added)
Subsections (A)(ii) and (B) thus require the statement or conduct to be in connection with an “issue of public interest.” Subsection (A)(i) does not. So, if a statement was made “[i]n connection with an issue under consideration or review by a legislative, executive, or judicial body,” does it also need to be “in connection with an issue of public interest”? Or are all statements made in connection with an issue under consideration or review by a legislative, executive, or judicial body ipso facto in connection with an issue of public interest?
This matters because DC Code §16-5501(3) defines “Issue of public interest” to mean “an issue related to health or safety; environmental, economic, or community well-being; the District government; a public figure; or a good, product, or service in the market place” but provides this definition “shall not be construed to include private interests, such as statements directed primarily toward protecting the speaker’s commercial interests rather than toward commenting on or sharing information about a matter of public significance.”
In the Coca-Cola case, Coca-Cola anticipated the plaintiffs would argue its statements were “directed primarily toward protecting the speaker’s commercial interests” and thus subject to the “private interest” exception to the “public interest” definition. Coca-Cola argued the “public interest” definition and the “private interest” exception were not implicated because the statutory definition Coca-Cola was relying upon (statements made “[i]n connection with an issue under consideration or review by a legislative, executive, or judicial body”) did not expressly incorporate the “public interest” definition.
Essentially, Coca-Cola argued a statement made in connection with an issue under legislative, executive or judicial consideration is always in connection with an issue of public interest. (Coca-Cola separately argued that, even if the “issue of public interest” definition applied, the private interest exclusion was inapplicable because its statements were about the industry in general, and not a particular product, so they were not “directed primarily” towards protecting its commercial interests).
Coca-Cola argued the plaintiffs could not show they were likely to succeed on the merits because the challenged statements were not false, are protected by the First Amendment (specifically, the Noerr-Pennington doctrine), the plaintiffs lacked standing, and the plaintiffs’ claims were otherwise time-barred or deficient.
The plaintiffs’ opposition brief argued Coca-Cola’s interpretation was inconsistent with the overall intent and structure of the DC anti-SLAPP statute:
The statute is clear. All conduct protected by the Act must relate to an “issue of public interest” as only such conduct can support a prima facie case under the Act. And the Act in turn expressly and without qualification defines “public interest” to exclude statements that are commercially motivated, regardless of the forum in which the issue is being discussed. D.C. Code §16-5501(3). Coke’s insistence that the overarching “public interest” requirement and the “private interest” exception can simply be ignored in certain instances would improperly read both of these two key interlocking provisions out of the statue. (Emphasis in original).
Plaintiffs argued that, because Coca-Cola must show its statements were made about an “issue of public interest,” and because that definition includes a “private interest” exception, and because Coca-Cola’s statements (whether in commercial advertising, to the media, or at scientific conferences) were directed primarily toward protecting its commercial interests, Coca-Cola had not established a prima facie case. The opposition brief mocked Coca-Cola’s assertion that its statements were not commercially motivated, noting “there is no authority for the proposition that statements about a category of products made by a company selling some of those products are not commercially motivated.” (Emphasis in original).
The plaintiffs next argued that, even if Coca-Cola could avoid the “private interest” exception in the “public interest” definition, they could not avoid the exception contained in DC Code §16-5505, which exempts from the statute a “[c]laim for relief brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct from which the claim arises is: (1) A representation of fact made for the purpose of promoting, securing, or completing sales . . . of . . . or commercial transactions in . . . the person’s goods or services; and (2) The intended audience is an actual buyer or potential buyer or customer.”
Finally, the plaintiffs argued they were likely to succeed on the merits because they had identified multiple false and misleading statements made by Coca-Cola, the Noerr-Pennington doctrine did not shield those statements, and the plaintiffs’ claims were not time-barred, beyond the scope of the Consumer Protection statute, or otherwise deficient.
In its reply brief, Coca-Cola repeated its argument that “any statement made in connection with an issue under legislative consideration is per se ‘in furtherance of the right of advocacy on issues of public interest’ under paragraph (1)(A)(i), regardless of whether it also satisfies paragraphs (1)(A)(ii) or (B). Not only is this clear from the text of the statute, but it makes intuitive sense. Every issue ‘under consideration’ by a legislative body is by definition one of public interest.” (Emphasis in original). Coca-Cola argued that it was the DC Council’s decision to structure the statute in this way and that the Council’s decision “must be given effect.” Coca-Cola also argued the plaintiffs’ reliance upon §16-5505 was unavailing because that exception “encompasses only promotions of sales to consumers, not all references to a speaker’s goods”; “[t]he statements at a scientific symposium were not accessible to consumers, let alone ‘intended’ for them”; and “the media interviews challenged Coca-Cola executives to responded to pointed criticisms.”
My two cents: As readers of this blog know, I believe Coca-Cola is correct when it argues that, if the suit arises from a statement made in connection with “an issue under consideration or review by a legislative, executive, or judicial body,” that satisfies the movant’s prima facie burden. Indeed, in October 2016, I blogged the following about a trade association’s anti-SLAPP special motion to dismiss:
On the critical question of whether PCPC’s “speech” to the government was about an issue of public interest, or in the trade association’s private or commercial interests, PCPC’s reply brief appears to miss a critical point: the first prong of the “act in furtherance of the right of advocacy on issues of public interest” definition does not, on its face, require the statement to be “in connection with an issue of public interest” (unlike the other two prongs of the definition). Thus, if the speech giving rise to this suit involved statements about an issue under consideration by a government agency, as PCPC argues, that should satisfy PCPC’s obligation under the statute, without it needing to also show the speech was about an issue of public interest.
As readers of this blog also know, courts in Louisiana and Vermont have judicially inserted a “public interest” requirement into very similar provisions of those states’ anti-SLAPP statutes (that did not contain any such requirement on their face). I believe those decisions are incorrect. If legislatures wanted to require a statement made “in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official body authorized by law” to also have a “public interest” nexus, they certainly knew how to do so. Courts should not insert a requirement that legislatures have omitted.
At the time I blogged about the Maine and Louisiana decisions, I noted this precise argument had not been the subject of any litigation in the District of Columbia. That is no longer the case. As always, stay tuned.