Why decisions in DC illustrate the need for a federal anti-SLAPP law (Part 2)

This is the second post in a three-part series from guest contributor Leslie Paul Machado, Chair of LeClairRyan's Media, Internet and E-commerce Industry Team and author of the D.C. Anti-SLAPP Law blog. Read Part 1 of the series here. 

The D.C. Circuit Holds the D.C. Anti-SLAPP Statute Cannot Be Used in a Federal Court Diversity Case

Finally, in Abbas v. Foreign Policy Group, Inc., the D.C. Circuit directly confronted the question of whether the statute could be used in a federal court diversity case. (A “diversity”case is a case in which the parties generally are from different states and the amount in dispute exceeds $75,000. The U.S. Code provides the federal court with authority to hear such cases). There, the son of Palestinian leader Mahmoud Abbas sued Foreign Policy Group for publishing an article in which it asked “Are the sons of the Palestinian president growing rich off their father’s system?” and “Have they enriched themselves at the expense of regular Palestinians – and even U.S. taxpayers?” 

The district court granted the defendants’ anti-SLAPP special motion to dismiss and dismissed the complaint with prejudice. 975 F. Supp. 2d 1 (D.D.C. 2013). On appeal, the D.C. Circuit, in an opinion authored by Judge Kavanaugh, held a federal court exercising diversity jurisdiction could not apply the anti-SLAPP’s special motion to dismiss provision because “Federal Rules of Civil Procedure 12 and 56 establish the standards for granting pre-trial judgment to defendants in cases in federal court. A federal court must apply those Federal Rules instead of the D.C. Anti-SLAPP Act’s special motion to dismiss provision.” Abbas, 783 F.3d 1328, 1333 (D.C. Cir. 2015).

The defendants in Abbas had argued the D.C. anti-SLAPP special motion to dismiss standard did not conflict with the Federal Rules of Civil Procedure because, according to them, “the D.C. Anti-SLAPP Act’s likelihood of success standard is just another way of describing the federal test for summary judgment.” The Abbas court explained that, although the D.C. Court of Appeals (D.C.’s highest court) had never interpreted the standard, to the Abbas court it appeared quite different from the Federal Rules:

Moreover, the D.C. Court of Appeals has never interpreted the D.C. Anti-SLAPP Act’s likelihood of success standard to simply mirror the standards imposed by Federal Rules 12 and 56. Put simply, the D.C. Anti-SLAPP Act’s likelihood of success standard is different from and more difficult for plaintiffs to meet than the standards imposed by Federal Rules 12 and 56.

The Abbas court added an “interesting” question could arise if the D.C. anti-SLAPP statute’s “likelihood of success” standard mirrored that found in the Federal Rules of Civil Procedure:

An interesting issue could arise if a State anti-SLAPP act did in fact exactly mirror Federal Rules 12 and 56. Would it still be preempted under Shady Grove? As defendants’ argument suggests, the answer to that question could matter for attorney’s fees and the like. But we need not address that hypothetical here because, as we have explained, the D.C Anti-SLAPP Act’s dismissal standard does not exactly mirror Federal Rules 12 and 56. Id. at 1335 n.3.

The D.C. Court of Appeals Implicitly Urges the D.C. Circuit To Revisit Its Abbas Decision

The next year, the D.C. Court of Appeals had its first opportunity to interpret what the “likely to succeed on the merits” standard in the D.C. anti-SLAPP statute meant. In Competitive Enterprise Institute v. Mann, 150 A.3d 1213 (D.C. 2016), the court agreed the D.C. anti-SLAPP statute was different from the typical summary judgment procedure:

[W]e agree with Abbas that the special motion to dismiss is different from summary judgment in that it imposes the burden on plaintiffs and requires the court to consider the legal sufficiency of the evidence presented before discovery is completed. Id. at 1238 n.32.

The Mann court clarified that, “[a]s concerns the standard to be employed by the court in deciding whether to grant the motion, however, the question is substantively the same: whether the evidence suffices to permit a jury to find for the plaintiff.” Id. The Mann court then went further and invited the federal court (and parties) to revisit whether the D.C. anti-SLAPP statute could apply in a federal court diversity case:

The applicability of the Anti-SLAPP statute in federal court is not for this court to determine. Abbas recognized that at the time, this court “has never interpreted the D.C. Anti-SLAPP Act’s likelihood of success standard to simply mirror the standards imposed by” Federal Rule 56. We do so now. This 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. Id. (citations omitted).

D.C. Federal Court Judges Continue Refusing to Apply the D.C. Anti-SLAPP Statute in Federal Court

Following Mann, several parties filed anti-SLAPP special motions to dismiss in federal court cases, arguing the federal court was bound to follow the decision of the highest “state” court and there was no longer any obstacle to applying the statute in federal court, because it simply “mirrored” the Federal Rules’ standard.

The first federal district court to rule on whether the D.C. Anti-SLAPP statute could again be applied in a federal court diversity case was Judge Huvelle’s decision last November in Deripaska v. The Associated Press, No. 17-913, 2017 WL 8896059 (D.D.C. Oct. 17, 2017). There, the court agreed it would defer to a decision from the D.C. Court of Appeals if that court had “spoken clearly and unmistakably” on a topic. Id. at *1. The Deripaska court held that, “while the D.C. Court of Appeals’ opinion in Mann merits analysis, it does not ‘clearly and unmistakably’ resolve the question at issue here.” Id. at *3. Thus the court held it “must follow the clear guidance of the D.C. Circuit and deny the special motion to dismiss.” Id. The Deripaska court acknowledged “that the result here will likely promote the type of forum-shopping that Erie intended to avoid.” Id.

Judge Huvelle then issued a decision in Democracy Partners, LLC v. Project Veritas Action Fund, 285 F. Supp. 3d 109 (D.D.C. 2018), in which she held the D.C. anti-SLAPP statute was not applicable to the state law claims in a federal court case based on federal question jurisdiction. Id. at 127. (As explained earlier, all the other D.C. decisions involving application of the D.C. anti-SLAPP statute in federal court were, to this point, in cases based on diversity jurisdiction.  Federal question jurisdiction allows federal courts to hear cases where the plaintiff alleges a violation of the United States Constitution, federal law, or a treaty to which the United States is a party. Along with diversity jurisdiction, it is the other major way cases are brought in federal court).  Judge Huvelle reasoned that: (1) the Abbas decision applied the Supreme Court’s Shady Grove decision; (2) other courts had held that Shady Grove was not limited to cases based on diversity jurisdiction; and (3) applying the D.C. anti-SLAPP statute in a federal court case based on federal question jurisdiction, but not diversity jurisdiction, “would create an irrational distinction in the treatment of identical state law claims.” Id. at 127-28.  The Democracy Partners decision is important because it means that D.C. federal district courts have now held that, despite Mann, the D.C. anti-SLAPP statute cannot be used in a federal court case, whether that case is based on diversity jurisdiction or federal question jurisdiction (which, as explained earlier, are the two major ways cases are brought in federal court).

In May 2018, Judge Mehta joined Judge Huvelle in holding that, even after Mann, the D.C. anti-SLAPP statute was not applicable in a federal court diversity case. In Libre by Nexus v. Buzzfeed, No. 17-1460, 2018 WL 2248420 (D.D.C. May 16, 2018), the court held that, despite the Mann court’s claim that the “likelihood of success standard does, in fact, ‘simply mirror the standards imposed by Federal Rule 56,’” there are fundamental differences that make the statute inapplicable in a federal court diversity case. Id. at *9.

The Libre court identified two fundamental differences. First, under the D.C. anti-SLAPP statute, a plaintiff must produce or proffer evidence to survive a special motion to dismiss while, under Rule 12(b)(6), a plaintiff need only plead facts establishing a “plausible” defamation claim to survive a motion to dismiss. Id. Second, the Libre court concluded, the D.C. anti-SLAPP statute’s burden-shifting framework (which allows the defendant, after making a prima facie showing, to shift the burden to the plaintiff to “put his evidentiary cards on the table” or face both dismissal and fees) “is anathema to the Rule 12(b)(6) standard, which places the burden squarely on the defendant to justify dismissal.” Id. These differences led the Libre court to conclude that it must follow Abbas. Id.

Then, in June 2018, a third judge on the same court (Judge McFadden) held the statute could not be applied in a federal court diversity case, even after Mann. Fairbanks v. Roller, No. 17-cv-01052, 2018 WL 2727897 (D.D.C. June 6, 2018). The Fairbanks court reasoned that, while the Mann court held the anti-SLAPP standard mirrored that found in the Federal Rules of Civil Procedure, the statute still conflicted with the Federal Rules because it inverted the burdens:

But like a mirror, the anti-SLAPP statute reverses the image that it reflects: Mann agrees with Abbas that the statute differs from Rule 56 by requiring the plaintiff to show a likelihood of success on the merits instead of placing the burden on the defendant. Id. And Mann adds that the statute’s dismissal standard differs from Rule 12 by requiring the plaintiff to produce evidence rather than allowing the plaintiff to rely on the allegations in her complaint. Id. at 1233; see also Libre by Nexus, 2018 WL 2248420 at *9. In short, Mann does not align the District’s anti-SLAPP statute with the Federal Rules.

* * *

[Mann] does not show that the anti-SLAPP statute should apply in federal court. So I am bound by the law of the Circuit and must dismiss Ms. Roller’s anti-SLAPP motion.

Finally, earlier this month, Judge Huvelle again denied anti-SLAPP special motions to dismiss filed by the Trump Campaign and Roger Stone in a suit brought by plaintiffs alleging the campaign and Stone “entered into an agreement with other parties, including agents of Russia and WikiLeaks, to have information stolen from the DNC publicly disseminated in a strategic way that would benefit the campaign to elect Mr. Trump as President.” In denying the defendants’ anti-SLAPP special motions to dismiss, Judge Huvelle explained “[t]he Court continues to adhere to its view that controlling precedent precludes the application of D.C.’s Anti-SLAPP Act in federal court,” citing its Democracy Partners and Deripaska decisions. Cockrum v. Donald J. Trump for President, Inc., No. 17-1370, 2018 WL 3250445, at *1 n.2 (D.DC. July 3, 2018).

To read more, the third post in this three-part series is available here. Mr. Machado will discuss the impact of these decisions on the legal landscape and the need for a federal anti-SLAPP law. Part 1 is available here.