DC’s Highest Court Holds Successful Anti-SLAPP Movant Is “Presumptively” Entitled to Attorneys’ Fees

Here are my three takeaways from yesterday’s DC Court of Appeals’ decision, holding that a successful movant under the DC anti-SLAPP statute “is entitled to reasonable attorney’s fees in the ordinary course – i.e., presumptively – unless special circumstances in the case make a fee award unjust,” and reversing a Superior Court decision which refused to award fees to a successful movant.  (You can read my prior blog post on this appeal here).

CONTINUE READING . . .

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Second Circuit Decision Creates Circuit Split and Could Impact Pending DC Appeal

An important decision issued by the Second Circuit last week adds to the growing dissonance among the federal circuits on anti-SLAPP motions.  The ruling could impact a case pending before the DC Court of Appeals, and creates another circuit split that will ultimately need to be resolved by the Supreme Court.

CONTINUE READING . . .

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Oklahoma Appellate Court Rules New anti-SLAPP Statute Does Not Apply Retroactively

From the state “where the wind comes sweepin’ down the plain” comes an appellate decision that might seem familiar to readers of this blog.

CONTINUE READING . . .

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Are We Witnessing A Pushback By Courts To Anti-SLAPP Motions?

As we approach the fifth anniversary of the date the DC anti-SLAPP statute became effective, recent decisions have me wondering if we are witnessing increased hostility against anti-SLAPP statutes nationwide?

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Is There a “Classic” SLAPP Case?

One of the interesting things about the Doe v. Burke II appeal is the Superior Court’s reasoning that, although the complaint was dismissed under the DC anti-SLAPP statute, no attorneys’ fees were warranted because the case was not a “classic” SLAPP.  The decision struck me as interesting because numerous movants have argued that their case is a “classic” or “typical” SLAPP.  As I explain below, while every movant undoubtedly would like to argue that its case presents a “classic” SLAPP, routinely doing so has the potential to distract the court and could result in legitimate anti-SLAPP motions being denied because the court focuses on whether the case is a “classic” SLAPP, instead of focusing on whether it satisfies the requirements of the statute.

CONTINUE READING . . .

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Another Court Imposes a “Public Interest” Requirement for anti-SLAPP motions

After my post on the Vermont Supreme Court’s decision, requiring all motions under Vermont’s anti-SLAPP statute to be based upon speech made in connection with an issue of public interest, a reader sent me a decision from a Louisiana appellate court, which imposed an identical requirement under Louisiana’s anti-SLAPP statute.

CONTINUE READING . . .

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Is there a “Public Interest” Requirement for anti-SLAPP Motions?

Does a party moving under the DC anti-SLAPP statute need to show that the claim arises from a statement made in connection with an issue of public interest?  While the text of the DC anti-SLAPP statute suggests the answer is no, the Vermont Supreme Court, interpreting Vermont’s virtually-identical anti-SLAPP statute, recently held that the answer is yes.

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Governmental entities and anti-SLAPP statutes

Earlier this year, in Henne v. City of Yakimathe Washington State Supreme Court held that the City of Yakima could not move under that state’s anti-SLAPP statute where it was the recipient – rather than speaker – of the challenged speech.  It is not clear if the outcome would have been different under the DC anti-SLAPP statute.

The facts are as follows:

CONTINUE READING . . .

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When Can A Successful Movant Recover Fees Under the DC Anti-SLAPP Statute?

The first time Burke v. Doe was before the District of Columbia Court of Appeals, it established new law, with the Court establishing that the denial of a special motion to dismiss was immediately appealableBurke II is now before the Court, and also has the potential to be precedent setting.  Here’s why.

CONTINUE READING . . .

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What’s the Impact of the DC Circuit’s Abbas Decision?

The DC Circuit’s Abbas decision, holding that the DC anti-SLAPP statute does not apply in a federal court diversity case, is beginning to have real-world consequences for litigants in the District of Columbia.  Since the April 2015 decision, at least two libel cases have been filed in DC federal court.  In both cases, the defendants are not able to move under the DC anti-SLAPP statute.  And for defendants sued in DC Superior Court – who are able to remove the case to federal court because of diversity jurisdiction – the Abbas decision leaves them with a difficult decision.

Since the DC Circuit issued its Abbas decision, two new libel suits have been filed in DC federal court based upon diversity jurisdiction:

  • In Rogers v. Secular Coalition for America, Inc., the plaintiff is suing her former employer and others for defamation and related torts arising out of her termination. (Disclosure: I am representing one of the individual defendants in this case).
  • In Hourani v. PsyberSolutions LLC, the plaintiff (represented by three of the same attorneys who represented the Abbas plaintiff) alleges that the defendants defamed him by suggesting that he was complicit in the murder of a woman.

Because of the Abbas decision, none of the defendants in either case are able to move under the DC anti-SLAPP statute.  If the cases were in DC Superior Court, the defendants could make an anti-SLAPP motion (assuming that they could show that the suit was based upon act or acts “in furtherance of the right of advocacy on issues of public interest”).

In an amicus brief filed in the Abbas case, the District of Columbia argued that the DC anti-SLAPP statute should apply in a federal court diversity case because “it would be inequitable to allow the use of a defense to parties subjected to a SLAPP in Superior Court, but deny them the use of that defense in federal court, especially since the choice of forum is, in large part, the province of the plaintiff” and because “if plaintiffs are subject to the heightened burden of proof set forth in the Act if they file their case in local court, but can avoid being subject to those standards if they file in federal court, that result will promote precisely the type of forum-shopping Erie was designed to avoid.”  Until Congress passes a federal anti-SLAPP statute, or the DC Circuit or Supreme Court hold that anti-SLAPP statutes apply in federal court, smart plaintiffs will file their libel cases in federal court, if they can, knowing that they are avoiding a possible anti-SLAPP motion.

In the meantime, a defendant who is sued in Superior Court, but who has the ability to remove the case to federal court because of diversity jurisdiction, has a difficult choice.  The deadline for removal is 30 days – not enough time to file an anti-SLAPP motion and get a ruling from the Superior Court.  So that defendant must decide whether to remain in Superior Court, so that it can file an anti-SLAPP motion, or remove the case to federal court, knowing that it will not be able to file an anti-SLAPP motion.

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