In these early days of the new year, I thought it would be useful to take a look back at the 2018 decisions, developments, and discussions involving the DC anti-SLAPP statute, as they will continue to impact this area of the law in 2019 and beyond.
The Door to Federal Court Remains Closed
Without question, the most significant issue continues to be the unavailability of the statute in DC federal court. Multiple parties have argued the DC Circuit’s Abbas decision (in which that court held the statute was unavailable in federal court because the likelihood of success standard (which the DC Court of Appeals had not yet interpreted) appeared to be “different from and more difficult for plaintiffs to meet than the standards imposed by Federal Rules 12 and 56”) is no longer good law following the DC Court of Appeals’ Mann decision (in which that court held the standard mirrored the standard imposed by Rule 56). Multiple DC federal district judges have rejected this argument.
First, in late 2017, Judge Huvelle became the first post-Mann judge to decide if an anti-SLAPP special motion to dismiss could again be filed in federal court. The court held that, while it would defer to a decision from the DC Court of Appeals if that court had “spoken clearly and unmistakably” on a topic, the Mann decision did not “clearly and unmistakably” resolve the question, so the court “must follow the clear guidance of the D.C. Circuit and deny the special motion to dismiss.”
Judge Huvelle then held the DC anti-SLAPP statute was not applicable to the state law claims in a case based on federal question jurisdiction. (All the other decisions involving application of the DC anti-SLAPP statute in federal court were, to this point, in cases based on diversity jurisdiction, including Abbas).
In May 2018, Judge Mehta joined Judge Huvelle in holding that, even after Mann, the DC anti-SLAPP statute was not applicable in a federal court diversity case. The court held that, despite the Mann court’s claim that the “likelihood of success standard does, in fact, ‘simply mirror the standards imposed by Federal Rule 56,’” there are fundamental differences that make the statute inapplicable in a federal court diversity case.
Then, in June 2018, Judge McFadden held the statute could not be applied in a federal court diversity case, even after Mann. The court held the statute still conflicted with the Federal Rules because it inverted the burdens by requiring the plaintiff to show a likelihood of success on the merits instead of placing the burden on the defendant.
These rulings have led to a bizarre bifurcated legal landscape where parties can successfully utilize the statute in cases filed in Superior Court, while the statute likely is unavailable for virtually identical cases filed in federal court. (Notwithstanding the lack of success to date in convincing federal district judges to resume applying the statute in federal court, parties continue filing anti-SLAPP special motions to dismiss, as I’ll discuss in my next post).
In December, the Eleventh Circuit held the Georgia anti-SLAPP statute could not apply in federal court, for the same reasons identified by the DC Circuit in Abbas. This deepened a circuit split with the First and Ninth Circuits, which have held state anti-SLAPP statutes can be utilized in federal court. Ultimately the issue is going to have to be resolved by the Supreme Court or Congress.
Successful Superior Court Motions
While the DC federal district court remained hostile to anti-SLAPP special motions to dismiss, movants found more success in DC Superior Court. In February, after the defendants (a scientist and scientific journal) filed anti-SLAPP special motions to dismiss a libel suit brought by a scientist upset at criticisms about his paper, the plaintiff voluntarily dismissed his suit.
In July, the Superior Court granted an anti-SLAPP special motion to dismiss filed by PBS in response to a suit filed by several entities owned by Tavis Smiley, alleging that PBS’s public statements – that it had received multiple credible allegations of misconduct by Smiley and that it had conducted an investigation into those allegations – were false and defamatory, and led to the alleged cancellation of existing contracts and interference with future business relationships.
The next month, another Superior Court judge granted an anti-SLAPP special motion to dismiss filed by defendants involved in the creation of the “Trump dossier,” made in response to a suit brought by three “international businessmen” who claimed they were defamed by certain statements contained in one of the reports.
Finally in November, a Superior Court judge granted anti-SLAPP special motions to dismiss filed by a lawyer, his law firm, and his clients, in response to suit brought by parties opposing them in another suit, who alleged statements made by the lawyer to a reporter were false and defamatory.
Unsuccessful Superior Court Motions
While several parties successfully prevailed on anti-SLAPP special motions to dismiss filed in Superior Court, not every movant was successful. In May, a Superior Court judge held a plaintiff could not use the DC anti-SLAPP statute to stop an arbitration the plaintiff believed was a SLAPP:
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).
In August, a Superior Court judge held a subpoena recipient could not use the DC anti-SLAPP statute’s special motion to dismiss provision to attack a subpoena. Finally, in November, a Superior Court judge denied an anti-SLAPP special motion to dismiss filed by an association and its president in response to a libel suit filed by a competing organization and its president. The court held the challenged statements were about the individual plaintiff and, as such, were not about an “issue of public interest.”
Questions, Questions and more Questions
As we approach the DC anti-SLAPP statute’s eighth anniversary, there are still numerous unanswered questions:
- If a plaintiff voluntarily dismisses his complaint after the defendant files an anti-SLAPP special motion to dismiss, but before the court rules on the motion, is the defendant entitled to recover his fees?
- If a defendant denies making the statement giving rise to the suit, can it still move under the DC anti-SLAPP statute?
- If the challenged statement was made in “connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law,” is that sufficient to satisfy the “act in furtherance of the right of advocacy on issues of public interest” requirement in the statute?
- When a plaintiff asserts claims that are dismissed under the DC anti-SLAPP statute, and also claims that are resolved on other grounds, what portion of its fees can a defendant recover?
As always, stay tuned.