“Everybody’s gonna pay”

I am not a wrestling fan. So I don’t know if it’s true that Ted DiBiase, who wrestled as “The Million Dollar Man,” “is regarded by many as the greatest villain in pro wrestling history.” What I do know is that DiBiase’s theme song included the line “everybody’s gonna pay.” For parties that have recently found themselves on the losing end of anti-SLAPP special motions to dismiss under the D.C. anti-SLAPP statute, they have discovered exactly how much they’re “gonna pay”

First, some background. The D.C. anti-SLAPP statute’s legislative history explained that “defendants of a SLAPP must dedicate a substantial[] amount of money, time, and legal resources.” As such, the statute included a fee-shifting provision that allows a successful movant to recover its fees. The D.C. Court of Appeals has interpreted this provision to mean a successful movant is “presumptively” entitled to recover its fees “unless special circumstances in the case make a fee award unjust.”

So, how much does it cost to prevail on an anti-SLAPP special motion to dismiss under the D.C. statute? Judging from some recent filings – approximately $125,000.

For example, after journalist Jose Gallego prevailed on his anti-SLAPP special motion to dismiss the suit brought by JAP Home Solutions, he sought to recover over $125,000 in fees and costs. The parties settled the fee dispute before the Superior Court ruled on Gallego’s motion.

Then Forest Hills Neighborhood Alliance and Jane Soloman filed a motion seeking over $128,000 in fees and costs allegedly incurred in their successful anti-SLAPP special motion to dismiss. That fee application remains pending in the Superior Court while the case is on appeal.

In late June, PBS sought over $114,000 in fees and costs allegedly incurred in prevailing on its anti-SLAPP special motion to dismiss the tortious interference claims brought by Tavis Smiley’s companies. Superior Court Judge Epstein ultimately awarded PBS over $96,000.

Most recently, Christopher Steele and Orbis moved to recover over $127,000 in fees and costs allegedly incurred in successfully prevailing on their anti-SLAPP special motion to dismiss. (The parties have agreed to stay the fees dispute until the Court of Appeals rules on the plaintiffs’ appeal).

My two cents: these motions underscore the importance of the D.C. anti-SLAPP statute. In each of these cases, a Superior Court judge concluded a plaintiff was unlikely to prevail on the merits of a claim that arose “from an act in furtherance of the right of advocacy on issues of public interest.” Without the D.C. anti-SLAPP statute, even if these defendants prevailed on their Rule 12(b)(6) motions to dismiss, they would not have recovered their fees. By allowing a successful movant to recover its fees, the D.C. Council wisely provided a remedy, by providing that losing parties “gonna pay.”

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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