Robo-Team Complaint Dismissed For Lack of Personal Jurisdiction

Last November, I blogged about Robo-Team NA, Inc. v. Endeavor Robotics, where Robo-Team alleged that a competitor (Endeavor) spread a false rumor that the Chinese government controlled Robo-Team, and used it to steal military technology from the United States. Robo-Team sued Endeavor and its lobbying firm (Sachem) for defamation, tortious interference with contactual and other business relationships, civil conspiracy, and unfair competition. Both defendants filed anti-SLAPP special motions to dismiss (along with “traditional” motions to dismiss).

I thought a decision might offer a glimpse into whether the DC anti-SLAPP statute was applicable in a federal court diversity case and/or the commercial exception. Unfortunately that’s not the case. In an opinion issued last week, the Court holds that it lacks personal jurisdiction over both defendants, so it grants their motions to dismiss. Consequently, the Court doesn’t reach the anti-SLAPP special motions to dismiss.

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When Does a Party “Prevail” Under the DC Anti-SLAPP Statute

When I last wrote about the Jacobson v. Clack case, Jacobson had voluntarily dismissed the suit (two days after a hearing on the defendants’ anti-SLAPP motion, but before the Superior Court ruled on the motion). I wondered if the defendants would move to recover their fees. Well, wonder no more.

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Investigative Report At Center of Alleged SLAPP

An interesting case is playing out in DC Superior Court. The plaintiffs allege, in a 103-page, 535-paragraph complaint, that they were defamed and cast in a false light in a 541-page report that was commissioned by the American Psychological Association, and prepared by the international law firm Sidley & Austin and its partner, David Hoffman, all of whom are defendants in the case.

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Scientist Drops Suit After Anti-SLAPP Hearing

There have been several notable developments in the scientist v. scientist case since our last post.

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“All We Need Is Just a Little Patience”

In 1987, I heard Welcome to the Jungle, and its distinctive opening guitar riff, and it was unlike anything I had ever heard before. One year later, GNR released Patience, a quiet song that opened with Axl whistling melodically into a mike. One of the lines in that song was “all we need is just a little patience.” I thought about that line recently when I saw that the parties in the Deripaska v. Associated Press appeal had jointly stipulated to the dismissal of their appeal with prejudice. The dismissal means we’re going to have to wait a bit longer to find out if the DC Circuit’s Abbas ruling remains good law following the DC Court of Appeals’ Mann ruling.

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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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