Why decisions in DC illustrate the need for a federal anti-SLAPP law (Part 3)

This is the final 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 here and Part 2 here. 

Why Does This Matter?

Part of the reason why federal courts apply state anti-SLAPP statutes in federal court is to avoid forum shopping. As the Godin court explained, refusing to apply a state anti-SLAPP statute in federal court “would thus result in an inequitable administration of justice between a defense asserted in state court and the same defense asserted in federal court. . . . [T]he incentives for forum shopping would be strong: electing to bring state-law claims in federal as opposed to state court would allow a plaintiff to avoid [the anti-SLAPP statute’s] burden-shifting framework, rely upon the common law’s per se damages rule, and circumvent any liability for a defendant’s attorney’s fees or costs.”

This reasoning echoed the Newsham court which, 11 years earlier, reasoned that, “if the anti-SLAPP provisions are held not to apply in federal court, a litigant interested in bringing meritless SLAPP claims would have a significant incentive to shop for a federal forum. Conversely, a litigant otherwise entitled to the protections of the Anti-SLAPP statute would find considerable disadvantage in a federal proceeding.” And it was the same concern that motivated Judge Huvelle to observe the unavailability of the D.C. anti-SLAPP statute in a federal court case “will likely promote the type of forum-shopping that Erie intended to avoid.”

The forum shopping concern expressed by the Deripaska court is not hypothetical. Soon after Judge Wilkins ruled, in the 3M v. Boulter case, that the D.C. anti-SLAPP statute could not be applied in a D.C. federal court diversity case, Bradlee Dean, who had filed a defamation and false light suit in D.C. Superior Court against several defendants, voluntarily dismissed his suit, so that he could re-file it in federal court. In his notice of dismissal filed in Superior Court, Dean explained he did so because of the 3M decision and the unavailability of the D.C. anti-SLAPP statute in federal court.

A starker example of the unfairness of the current regime is playing out today. In December 2017, “three international businessmen” sued Fusion GPS and its alleged principal, Glenn Simpson, claiming they were defamed by certain statements contained in one of the reports comprising the “Trump Dossier.” The one-count defamation complaint alleges Fusion GPS and Simpson hired a “former British intelligence officer named Christopher Steele, who operated through a London-based entity known as Orbis Business Intelligence Limited” to compile the reports. Fusion GPS and Simpson filed an anti-SLAPP special motion to dismiss the suit. Although the court has not ruled on the motion, it seems likely it will conclude the statute cannot be used in a federal court case (given the four recent decisions discussed above).

What makes this circumstance particularly unfair is that, in April 2018, the same three businessmen sued Steele and Orbis, for the same conduct and statements, but in Superior Court. There, defendants have filed an anti-SLAPP special motion to dismiss, which will be heard, and will be decided, by that court. 

So we have two virtually identical suits, for the same conduct, brought in the same jurisdiction (albeit against different defendants). Because one suit was filed in Superior Court, the defendants have an available “substantive” remedy that could dispose of the case before they have to incur significant fees and costs. This same remedy, however, is likely unavailable to the defendants in the federal court suit. 

The availability of a substantive defense should not depend on whether the plaintiffs sued in federal or state court. The only way to avoid the naked forum shopping that has already occurred, and will occur again, is to pass a federal anti-SLAPP statute. Until that happens, litigants in the District of Columbia (and other jurisdictions where federal courts refuse to apply state anti-SLAPP statutes) will be denied an important and valuable defense against potentially meritless libel suits, simply because the plaintiff was smart enough to sue in federal court (and not state court).

Read Part 1 of the series here, and Part 2 here. Read more of Mr. Machado's writing on the D.C. anti-SLAPP law here.