Imagine a legal world where the outcome of a motion depends on what side of the street the case was filed. For parties litigating certain types of cases in the District of Columbia, this bizarre world is unfortunately all too real.
In the DC Superior Court, which partially sits on C Street in Northwest DC, a party can invoke the D.C. anti-SLAPP statute to respond to a lawsuit that arises from an act in furtherance of the right of advocacy on issues of public interest. That’s what Christopher Steele and Orbis Business did last year, successfully obtaining dismissal of a libel suit brought by three Russian businessmen who alleged they were defamed by one of the reports comprising the “Trump Dossier,” which was authored by Steele.
Earlier this month, the DC federal court, which also partially sits on C Street in Northwest DC, held that Fusion GPS and Glenn Simpson, who allegedly retained Steele to research any Russian connections to Trump, could not invoke the DC anti-SLAPP statute to respond to a suit brought by the same three Russian businessmen, complaining about the same statements. Judge Leon thus became the fourth DC federal district court judge to rule the anti-SLAPP statute still cannot be used in federal court (first, second, and third).
The court first explains the D.C. Circuit held, in Abbas v. Foreign Policy Group, LLC, “that a federal court sitting in diversity must apply Federal Rules of Civil Procedure 12 and 56 rather than D.C.’s Anti-SLAPP Law, as the former are valid and ‘answer the same question’ differently than the latter.” The court agrees that, if the DC Court of Appeals then “clearly and unmistakably” rejected this interpretation of the statute in Mann, it would control here, but concludes that is not the case:
Unfortunately for defendants, however, three of my colleagues on this Court have recently held that Mann does not sufficiently resolve this issue and that, therefore, Abbas remains the controlling law in our Circuit. (emphasis in original).
Judge Leon notes that, “for this very reason defense counsel candidly admitted at oral argument that defendants ‘are swimming uphill on the application on the Anti-SLAPP Act’ in this case. Given the sound reasoning employed in the foregoing decisions, the hill is steep, and the current is strong. I decline to ease either.” (For those interested, the court also denies the defendants’ Rule 12(b)(6) motion to dismiss, concluding the complaint plausibly alleged a claim for defamation and that the question of whether the plaintiffs are public figures (and thus required to plead facts showing malice) could not be determined at this stage).