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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Superior Court Suit Alleges Arbitration Claim Is a SLAPP

If a person believes that a defamation claim being asserted against him in a pending arbitration is a SLAPP, can he ask the Superior Court to issue a declaration and an order stopping the claim from being pursued? A new complaint in DC Superior Court asks for exactly that relief.


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Superior Court Grants Trade Association’s anti-SLAPP motion

Last October, I wrote about the Personal Care Products Council’s interesting anti-SLAPP motion, filed in a DC Superior Court case. There, the plaintiff (Simpson) alleged that she developed ovarian cancer by using talcum powder. In addition to suing talc manufacturers and suppliers, she sued PCPC, alleging that it submitted information to governmental agencies about talc’s safety that was “biased” and was part of a campaign to “prevent the regulation of talc and to mislead the consuming public about the true hazards of talc.”

Earlier this year, the Superior Court granted PCPC’s anti-SLAPP special motion to dismiss in an oral ruling from the bench. The ruling is interesting because, as far as I am aware, it is the first decision to apply the Court of Appeals’ Mann decision.

The Superior Court first held that PCPC had satisfied its burden of showing that the suit arose from an act in furtherance of its right of advocacy on issues of “public interest.” Although Simpson argued that PCPC could not be said to be “speaking” about issues in the public interest because, when it “spoke,” it was representing the views of its members and their commercial interests, the court rejected this argument:

the court distinguishes between when a trade association is promoting a specific product or the benefits of a specific product versus when a trade association is speaking more generally about products and the health and safety of those products as opposed to a specific commercial product named.

* * *

Plaintiff’s complaint does not allege that PCPC made any representations regarding a particular product, only about the safety of talc in general. Furthermore, PCPC is a nonprofit trade association.  It does not manufacture, design or sell any products. As a result, PCPC does not have, this Court concludes, a commercial interest to protect.

The court agreed with PCPC that its submission of scientific reports to government agencies, for which it was being sued, qualified as an act in furtherance of the right of advocacy under the statute. It held that PCPC’s release of information about talc to the public also qualified as an act in furtherance of the right of advocacy. As such, the court found that PCPC had established a prima facie case, shifting the burden to Simpson to show that she was likely to prevail on the merits.

With respect to Simpson’s burden, the Superior Court expressly followed the Court of Appeals’ recent interpretation of the standard in Mann, holding that Simpson needed to show “whether a jury properly instructed on the law, including any applicable heightened fault and proof requirements could reasonably find for [Simpson] on the evidence presented.” The court held that Simpson had not carried her burden with respect to her negligence claim: although Simpson alleged that PCPC owed her a duty by promulgating industry standards, and that it breached this duty by failing to ensure member compliance with its standards, an unrebutted affidavit from PCPC stated that it had no authority to regulate its members, and thus could not have prevented the sale of talcum-containing products. The court held that Simpson’s fraud and conspiracy claims were also fatally deficient.

Simpson argued that she was entitled to discovery before the court ruled on PCPC’s anti-SLAPP motion to dismiss. The court acknowledged that the statute allows targeted discovery, but found that Simpson had not explained what targeted discovery she needed to defeat PCPC’s motion. As such, it denied Simpson’s discovery request and, instead, granted PCPC’s special motion to dismiss.

The court then turned to the issue of attorney’s fees. Simpson’s counsel argued that this case was a “special circumstance” under which the court should not grant attorney’s fees:

plaintiff in filing its complaint had no idea that a motion to dismiss based on the Anti-SLAPP statute would be filed, did not anticipate this issue.  And we are not specifically filing this lawsuit with the SLAPP provisions in mind.

Referencing the Court of Appeals’ Burke II decision, in which the Court held that a successful anti-SLAPP movant was presumptively entitled to recover its fees, the Superior Court held that it would award PCPC its attorney’s fees.

My takeaway: This case demonstrates the power of anti-SLAPP statutes.  Simpson essentially filed a products liability lawsuit that, among other allegations, claimed the industry trade association had some role in misinforming the public and government about talc. By invoking the anti-SLAPP statute, PCPC was able to stop all discovery and introduce evidence contradicting the allegations in the complaint. This was central to the court granting PCPC’s motion, and awarding it its fees.



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Foreign Officials, Defamation Claims and the DC anti-SLAPP Statute

For the third time in the past five years, a court has applied the DC anti-SLAPP statute to dismiss a defamation suit brought by a foreign official.


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Three Takeaways from the DC Court of Appeals’ Mann Decision

There have been numerous articles about the long-awaited DC Court of Appeals’ opinion in Michael Mann’s libel suit against the National Review and Competitive Enterprise Institute, including in the Washington Post, Buzzfeed, Inside Higher Education, and National Review.  While there is much to analyze, consider and discuss in the 105-page opinion, as it relates to the DC anti-SLAPP statute, there are three specific takeaways.


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National Roundup of Important Anti-SLAPP Appeals

After the DC Circuit issued its decision in Abbas v. Foreign Policy Group last year, holding that the DC anti-SLAPP statute does not apply in a federal court diversity case (and disagreeing with every other federal appellate court to decide the issue of whether a state anti-SLAPP statute applies in federal court), I’ve been watching to see if Abbas was an outlier, or the beginning of a trend.  The next few months should go a long way towards giving us that answer.  Here’s why.


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Is a Consumer Trade Association’s Speech Covered by the DC Anti-SLAPP Act?

When a consumer trade association “speaks” about the health effects of a product, is its speech on an issue of public interest, and thus within the scope of the DC anti-SLAPP statute, or is it in furtherance of the association’s private or commercial interests, falling outside the statue’s scope?  A case pending in DC Superior Court could answer this interesting question.


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What’s Going On With The Mann v. National Review Appeal?

In November 2014, this intrepid blogger trooped down to the DC Court of Appeals to watch the Mann v. National Review oral argument.  In my post, I wrote that the panel was likely to conclude that the denial of an anti-SLAPP motion to dismiss was immediately appealable (having already held, in Burke v. Doe I, that the denial of a special motion to quash under the DC anti-SLAPP statute was immediately appealable), and that the tougher question would be how to apply the “likely to succeed” standard at the motion stage.


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