D.C. Court of Appeal Decides Mann v. National Review and Burke II

DWT Media Law January 24, 2017 Comments Off on D.C. Court of Appeal Decides Mann v. National Review and Burke II
D.C. Court of Appeal Decides Mann v. National Review and Burke II

By Lisa B. Zycherman

In 2015, the District of Columbia Circuit held, in Abbas v. Foreign Policy Group, that the D.C. anti-SLAPP statute conflicts with the Federal Rules of Civil Procedure and is thus inapplicable in a federal court diversity case. The Abbas decision had the effect of making federal court potentially unavailable for parties who want to file an anti-SLAPP motion in the District of Columbia. Following the Abbas decision, nearly all activity involving the D.C. anti-SLAPP statute has occurred in the district’s nonfederal courts.

Unfortunately, a stack of SLAPP appeals have awaited resolution in the District of Columbia Court of Appeals, which—until the last days of 2016—had not issued a decision in Mann v. National Review. This case challenged, among other issues, whether the denial of an anti-SLAPP motion to dismiss was immediately appealable. In a 111-page decision, the D.C. Court of Appeals ruled in December that prominent climatologist Michael Mann’s defamation suit against Rand Simberg, Mark Steyn, National Review and the Competitive Enterprise Institute over blog posts written by Simberg and Steyn may proceed. More than two years after hearing oral arguments, the court sided with the defendants that denial of a special motion to dismiss pursuant to the anti-SLAPP statute is immediately appealable, but ultimately rejected their effort to have the defamation suit dismissed. On the merits, the appellate court upheld the lower court’s refusal to dismiss the defamation suit seeking to hold defendants liable for chastising Mann as “the Jerry Sandusky of climate science” and saying his global warming study “molested” data, concluding that Mann provided enough evidence to support his claims. The court’s procedural ruling, however, makes it more likely that non-meritorious suits can be quashed relatively quickly.

Before the Mann opinion, the D.C. Court of Appeals issued one other decision of note in 2016. The first time Burke v. Doe was before the District of Columbia Court of Appeals in 2014, it established new law, with the court holding that denial of a special motion to quash under the D.C. anti-SLAPP statute was immediately appealable under the collateral order doctrine. In that proceeding, the attorney plaintiff sued multiple anonymous defendants (“John Does 1–10”) alleging defamation and other torts arising from edits made to a Wikipedia page established her name. John Doe 1 had allegedly added information to the page using the name Zujua. After Ms. Burke caused a subpoena to be issued to obtain Wikipedia’s user data and thereby learn Zujua’s (and others’) identity, Zujua filed a special motion to quash the subpoena. The trial court denied the motion, but the D.C. Court of Appeals reversed, holding that Zujua had shown “that his speech is of the sort that the statute is designed to protect” and that the plaintiff, who was thus “required to show malice on Zujua’s part … to succeed” in rebuttal, had failed to show a “likelihood of success on [her] underlying claims.”

In Burke II, decided in March 2016, the D.C. Court of Appeals held that Zujua, a successful movant under the D.C. anti-SLAPP statute, was “entitled to reasonable attorney’s fees in the ordinary course unless special circumstances in the case make a fee award unjust,” reversing a Superior Court decision that refused to award Zujua fees. The Burke II court concluded that a successful anti-SLAPP movant is presumptively entitled to recover attorney’s fees, without any additional showing of frivolousness or wrongful motivation. And, the court held that, although the statute provided that the court “may” award fees to a successful anti-SLAPP movant (suggesting an element of discretion), both the statute’s stated purpose (“to award the costs of litigation to the successful party on a special motion”) and its legislative history (which based the D.C. anti-SLAPP statute on then-pending federal legislation that provided for the recovery of attorneys’ fees) supported a finding that a successful anti-SLAPP movant was presumptively entitled to recover its fees.

Lisa B. Zycherman is an associate in Davis Wright Tremaine LLP’s Washington, D.C. office.

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