When Scientists Sue

Mark Jacobson, who alleges that he is a “renowned scientist,” along with three co-authors, publishes a paper in the Proceedings of the National Academy of Sciences journal. The Jacobson paper posits that a large-scale US transition to renewable energy could, by 2050, eliminate the need for other energy sources. Six months later, a group of other scientists and scholars, led by Christopher Clack, submit a paper to PNAS in which they question some of the assumptions, methodologies and conclusions in the Jacobson article.

Jacobson reviews the draft Clack paper and allegedly identifies numerous false and misleading statements, which he catalogues in a document. The Jacobson critique is submitted to PNAS, and ultimately to the Clack authors. They, in turn, slightly modify their paper, but largely adhere to their original criticisms. The Clack paper is published by PNAS on June 19, 2017. At the same time, the NAS publishes a 1300-word letter from Jacobson in which he responds to the Clack paper.

So the scientists then duel in the court of public opinion, quarrelling about their respective papers, assumptions and positions, and letting the marketplace of ideas sort through all of it, correct? Ha ha. Don’t be silly. You know what happens next. 


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Two More Anti-SLAPP Motions Filed in DC Federal Court Cases

We are one step closer to a decision from the DC Circuit on whether its Abbas ruling remains good law following the DC Court of Appeals’ Mann decision. The plaintiff in the Deripaska v. Associated Press case has appealed the Rule 12(b)(6) dismissal of his suit. In response, the Associated Press filed a notice of cross-appeal, presumably to argue that the district court erred in concluding that it was bound to follow Abbas.


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Another Superior Court Judge Dismisses SLAPP Suit

In the quintessential SLAPP suit, a large, well-heeled plaintiff (typically a corporation) sues an individual for something he/she said, which offends the plaintiff. The goal is to punish the speaker for the speech, so that he or she is silenced, and a message is sent to others to stay quiet, or risk the same fate. A reporter recently argued that he was the victim of a SLAPP; the court granted his special motion to dismiss.


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Judge Reaffirms That Anti-SLAPP Statute Does Not Apply in Federal Court

Last month, the judge presiding over the Deripaska v. Associated Press case granted the Associated Press’ Rule 12(b)(6) motion and dismissed the case. The Associated Press had filed a companion special motion to dismiss under the DC anti-SLAPP statute. The federal court issued a separate opinion, denying that motion.

The federal district court agreed that, when the DC Court of Appeals has “spoken clearly and unmistakably as to the current state of D.C. law,” a federal court should follow that decision (e.g., Mann), even if it appears to be in conflict with a prior decision from the DC Circuit (e.g., Abbas). The court concluded, however, that the Mann decision did not “clearly and unmistakably” resolve the question of whether a federal court exercising diversity jurisdiction may apply the D.C. anti-SLAPP Act’s special motion to dismiss provision. The court acknowledged that its decision “will likely promote the type of forum-shopping that Erie intended to avoid,” but explained that “it is not for district court judges to override the determinations of circuit precedent.”  As a result, the court denied the Associated Press’s anti-SLAPP special motion to dismiss.

The issue of whether the DC anti-SLAPP state can be applied in a federal court diversity case (after Mann) will ultimately need to be decided by the DC Circuit. And the question of whether state anti-SLAPP statutes can be applied in a federal court diversity case will ultimately need to be decided by the Supreme Court. For now, I assume that parties proceeding in DC federal court diversity cases will continue to make their motions. We’ll discuss two more such motions in our next post.

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A Torrent of Anti-SLAPP Motions in DC Federal Court Cases

After the DC Court of Appeals essentially invited a party to file an anti-SLAPP special motion to dismiss in a DC federal court diversity case, it took seven months for the Associated Press to accept the invitation. That motion apparently opened the floodgates, as three more parties have now filed anti-SLAPP motions in separate DC federal court cases.


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Superior Court Judge Grants Anti-SLAPP Special Motion to Dismiss

For the second time in ten months, Superior Court Judge Steven Wellner has granted a special motion to dismiss under the DC anti-SLAPP statute. Here’s the background of this case.


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Russian Oligarch Spars With Associated Press Over Whether DC Anti-SLAPP Statute Applies in Federal Court

Last month, Oleg Deripaska filed his response to the Associated Press’ anti-SLAPP special motion to dismiss. His brief argues that the Court should deny the Associated Press’ motion for multiple reasons. I discuss each below. 


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Appeal Held Moot and Dismissed By Court of Appeals

Last June, I wrote about the non-party subpoena served on the Competitive Enterprise Institute, and the anti-SLAPP motion to dismiss the CEI filed in response. In that post, I mentioned an earlier case where subpoenas were served on two non-parties in the District of Columbia; they responded by filing anti-SLAPP motions to dismiss; the Superior Court denied those motions; and the movants appealed the denial to the Court of Appeals, which stayed the case until resolution of the then-pending Mann appeal. The Court of Appeals has now disposed of that appeal.


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Associated Press Files Anti-SLAPP Motion in DC Federal Court Diversity Case

In January, I wrote about the DC Court of Appeals’ then-recent Mann decision, and specifically about the Court’s response to the DC Circuit’s Abbas decision, which held that the DC anti-SLAPP statute could not apply in a federal court diversity case:

According to the Mann court, part of the Abbas court’s reasoning was that the burden imposed by the DC anti-SLAPP statute was materially different from the burden imposed by Fed. R. Civ. P. 56. The Mann court now expressly holds that the burdens are the same, and then states that “[t]his court’s interpretation of the standard applicable to the special motion to dismiss under District of Columbia law will no doubt factor into future analysis of the dicta in Abbas concerning the applicability of the Anti-SLAPP Act in litigation brought in federal courts.”

In my January post, I wrote that the DC Court of Appeals’ statement seemed “to be a direct challenge to the DC Circuit’s conclusion that the DC anti-SLAPP statute does not apply in federal court,” and wondered “if a party will now seek to invoke the DC anti-SLAPP statute in a diversity case and, when Abbas is raised in opposition, argue that the Mann decision suggests that the Abbas decision should be revisited.”

Wonder no more. Last Monday, the Associated Press filed an anti-SLAPP motion (and a companion Rule 12(b)(6) motion) in the federal court diversity case brought by Oleg Deripaska.  There, Deripaska is alleging that a March 22, 2017 Associated Press article defamed him “by direct statements and by implication.”

The AP’s anti-SLAPP brief argues that the Mann decision is an “intervening express clarification of the Act by the D.C. Court of Appeals” that requires the Court to consider whether Abbas “remains good law.” The brief cites a recent decision from Judge Howell, in which she held that, when the DC Court of Appeals “has spoken clearly and unmistakably to the current state of D.C. law, its views must govern,” and argues that “[t]he Mann decision represents an intervening and controlling interpretation of D.C. law to which this Court must defer.” The brief argues that applying the DC anti-SLAPP statute in federal court also has the salutary effect of eliminating forum-shopping, which has already occurred in at least one other case.

The AP’s anti-SLAPP brief persuasively argues that the suit arises from an act in furtherance of the right of advocacy on issues of public interest (because it involves statements made about an issue under consideration by a legislative body, because it was made in a forum open to the public in connection with an issue of public interest, and/or because it involved communicating views to members of the public in connection with an issue of public interest).

The AP’s anti-SLAPP brief, and a companion Rule 12(b)(6) brief, argue that Deripaska is unlikely to succeed on the merits because certain of the challenged statements are not “of and concerning him”; others are protected opinion; the defamatory implication alleged in the complaint is contradicted by other statements; or a fair reading of the article does not reasonably convey the defamatory implication alleged. The AP also argues that Deripaska is, at a minimum, a limited-purpose public figure and that his complaint did not plead facts showing that the AP published the article with actual malice.

It will be interesting to see how the Court handles the anti-SLAPP motion. If it is inclined to dismiss the complaint, it could grant the Rule 12(b)(6) motion and avoid deciding the anti-SLAPP motion. Otherwise we should get a ruling from a DC federal court on whether the DC anti-SLAPP statute is again available in a diversity case in this forum. As always, stay tuned.

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Are Anti-SLAPP Statutes The Elephant In the Room?

Last year, I noted that several judges around the country were expressing concern that state anti-SLAPP statutes were being applied to cases that did not appear intended to “chill” legitimate speech. For example, a Texas state appellate judge, in a section of his concurring opinion titled “The ‘Elephant In the Room,’” lamented the breadth of the Texas anti-SLAPP statute and that it was being used to dismiss suits that were not actual Strategic Lawsuits Against Public Participation:

while the TCPA might indeed capture some “legal actions” that are truly SLAPPs as conventionally understood, the vastness of the range of “legal actions” that are deemed suspect by this statutory framework and ultimately excised from the civil justice system ensures that the Act will operate arbitrarily in relation to any “anti-SLAPP” goal in many, if not most, of the cases to which it applies.  This case is a good illustration.

Serafine has not preserved any contention that the Blunts asserted their counterclaims with the objective of punishing or chilling her exercise of expressive freedoms, as might be characteristic of a SLAPP. Her argument, rather, is merely to the effect that the TCPA, as written, provides her (however fortuitously) with a tactical advantage that she is entitled to wield in her lawsuit against the Blunts. The Blunts’ sin, in other words, is not that they asserted a “legal action” that anyone contends is truly a SLAPP in the conventional sense, but merely that they pleaded compulsory counterclaims that happened to implicate the TCPA (at least in part) and that they could not overcome the “prima facie case” requirement.

Last month, the Massachusetts Supreme Judicial Court (Massachusetts highest state court) reached the same conclusion about that state’s anti-SLAPP statute. It went further, however, and interpreted the statute to now allow a party opposing an anti-SLAPP motion to prevail if it can show that the suit was not “brought primarily to chill the movant’s legitimate exercise of its right to petition.”

In Blanchard v. Steward Carney Hosp., after an investigation into alleged patient abuse/neglect, the hospital terminated several nurses. The hospital president then made a statement to the Boston Globe which suggested that the terminated employees had been fired, in part, because of their culpability. Nine of the terminated nurses filed suit for, among other things, defamation. The trial court denied the hospital’s anti-SLAPP motion to dismiss. After the intermediate appellate court reversed, the Supreme Judicial Court agreed to hear the case.

The court first held that, because the hospital’s license was under review at the time the hospital president made the statement, the hospital carried its burden of showing that the statement was subject to the Massachusetts anti-SLAPP statute (because statement might have been read by government decisionmakers and thus could be construed to be in furtherance of the hospital’s petitioning rights to preserve its license). Under the court’s well-established caselaw, this showing shifted the burden to the nurses to show that the hospital’s statement lacked any reasonable basis in the law or fact (i.e., was a sham).

The court observed, however, that “the present framework does not provide adequate means to distinguish between meritless claims targeting legitimate petitioning activity and meritorious claims with no such goal. It is only the former, the actual ‘SLAPP’ suit, that the Legislature intended to stop early in its tracks.”  The court termed this – wait for it – the “proverbial unacknowledged elephant in the room”:

That problem is whether the plaintiff nurses’ defamation claim is, in fact, a “SLAPP” suit at all. Otherwise put, even if it were shown that the Boston Globe based portion of the nurses’ defamation claim arises from and is, in that limited sense, solely based on their hospital employer’s quite legitimate petitioning activity, it nevertheless remains unclear whether this qualifies as a disfavored “SLAPP” suit meriting early dismissal. Under current case law, the inquiry ends without permitting confirmation that the fundamental statutory concern is satisfied, much like the proverbial unacknowledged elephant in the room.

The court explained that the current approach “leaves open the possibility that a special movant, whose legitimate petitioning activity forms the basis of a meritorious adverse claim that is not primarily geared toward chilling such petitioning, may nonetheless use the special motion to eradicate that nonmoving party’s adverse claim.” The court was troubled by this prospect and, as a result, held that, going forward, the nonmoving party could defeat the special motion to dismiss if it showed that:

the claim was not primarily brought to chill the special movant’s legitimate petitioning activities. To make this showing, the nonmoving party must establish, such that the motion judge may conclude with fair assurance, that its primary motivating goal in bringing its claim, viewed in its entirety, was “not to interfere with and burden defendants’ petition rights, but to seek damages for the personal harm to it from the defendants’ alleged acts.”

As readers of this blog know, nonmoving parties in the District of Columbia have regularly argued that anti-SLAPP motions should be denied because their suit was not intended to stifle speech. The DC Court of Appeals rejected this argument in Burke II. There, the Superior Court judge initially declined to award the successful anti-SLAPP movant his attorneys’ fees, reasoning that the complaint was not “a classic SLAPP suit” because it “was not intended to inflict costly litigation fees . . . as a means to stifle speech.” The Court of Appeals reversed, holding that it was improper for the trial judge to consider “the merits of, and motive behind, the underlying lawsuit”:

The threshold defect in this statutory reading is that nowhere does the Act refer to or define a “classic” SLAPP suit, as distinct from one against which the defendant may invoke the statute’s protections after a threshold prima facie showing. . . .  Nothing in this language, or in the words of the attorney’s fee provision, §16-5504 (a), implies that to qualify for fees the anonymous defendant successful in quashing a subpoena must have resisted a SLAPP claim “classic” or exemplary in nature, rather than one arising – solely but pivotally – from the defendant’s exercise of a special form of speech or advocacy. The protections of the Act, in short, apply to lawsuits which the D.C. Council has deemed to be SLAPPs.

It remains to be seen if the Blanchard court’s reasoning, and the similar concerns expressed by other judges, will cause the DC Court of Appeals to revisit this aspect of its Burke II decision. As always, stay tuned.

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