BY LISA B. ZYCHERMAN
Following the D.C. Court of Appeals’ December 2016 decision in Competitive Enter. Inst. v. Mann, 2017 had the potential to be a big year for anti-SLAPP litigation in the nation’s capital. The decision, which put into question the D.C. Circuit’s holding in Abbas v. Foreign Policy Group that the District of Columbia’s anti-SLAPP statute is inapplicable in federal diversity suits, has prompted numerous district court challenges to Abbas that will be resolved in the year ahead.
The Mann suit alleged injury from reporting accusing the plaintiff climatologist of “molesting” data to produce the infamous “hockey stick” graph and comparing Penn State’s investigation of his alleged research improprieties to its inquiry into the child-molestation accusations against Jerry Sandusky. The D.C. Court of Appeals’ decision affirming the trial court’s denial of the defendants’ anti-SLAPP motion was notable for several reasons. First, the court held that the denial of an anti-SLAPP special motion to dismiss is immediately appealable. Second, the court interpreted the statutory requirement that a party opposing a SLAPP motion “demonstratethat the claim is likely to succeed on the merits” to mean “whether a jury properly instructed on the law, including any applicable heightened fault and proof requirements, could reasonably find for the claimant on the evidence presented,” and rejected the argument that this standard allows the trial court to weigh evidence or make credibility determinations.
Third, and perhaps most significantly, the D.C. Court of Appeals acknowledged the Abbas decision, noting that part of the Abbas court’s reasoning was that the burden imposed by D.C.’s anti-SLAPP statute was materially different from the burden imposed by federal Rule 56. The Mann court, however, expressly held to the contrary—that the burdens are the same—thereby challenging the D.C. Circuit’s conclusion that the D.C. anti-SLAPP statute is inapplicable in federal diversity suits.
Based on the Mann ruling, defendants in several suits pending in D.C. federal court sought to invoke the Anti-SLAPP law. In Deripaska v. Associated Press, a Russian billionaire sued the Associated Press for allegedly defaming him in an article about Paul Manafort’s purported links with Russia. The Associated Press sought dismissal under Rule 12(b)(6) and the D.C. Anti-SLAPP Act. The judge presiding over the case granted the Associated Press’ Rule 12(b)(6) motion and dismissed the case, and issued a separate opinion denying the SLAPP motion. The district court agreed that when the D.C. 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 D.C. Circuit (e.g., Abbas), but ultimately concluded 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 issue of whether, after Mann, the D.C. anti-SLAPP statute can be applied in a federal court diversity cases will ultimately need to be decided by the D.C. Circuit. Several cases with fully briefed anti-SLAPP motions are in line to do the job. They include Fairbanks v. Roller, a suit alleging defamation by tweet purportedly suggesting that the plaintiff employed an “alt-right” hand gesture suggesting she was a white supremacist; Cockrum v. Donald Trump for President, Inc., a suit seeking damages under D.C. and federal law for claims the Trump campaign conspired to publish hacked DNC emails on WikiLeaks; Libre by Nexus v. Buzzfeed, a suit claiming defamation from a report that the plaintiff had been investigated by the federal government for allegedly targeting undocumented immigrants in custody and fraudulently charging them a fee for services; and Robo-Team NA, Inc. v. Endeavor Robotics, a suit alleging that defendants circulated a memo on Capitol Hill identifying the plaintiff as a threat to U.S. ground robotics technology because it was allegedly funded by Chinese investors and falsely stating that plaintiff might have violated federal regulations.
Lisa B. Zycherman is counsel in Davis Wright Tremaine LLP’s Washington, D.C., office.