On September 7 the District of Columbia Court of Appeals reached an important issue about the D.C. Anti-SLAPP Act that it had reserved a few months earlier.1 In Banks v. Hoffman,2 the Court held “the discovery-limiting aspects of the D.C. Anti-SLAPP Act’s special-motion-to-dismiss procedure conflict with FRCP 56” and were therefore invalid as an effort to alter the requirement of D.C. Code § 11-946, that the Superior Court “conduct its business according to the Federal Rules of Civil Procedure … unless it prescribes or adopts rules which modify those Rules.”3 The Home Rule Act provides that “[t]he Council shall have no authority to . . . [e]nact any act, resolution, or rule with respect to any provision of Title 11 (relating to organization and jurisdiction of the District of Columbia Courts).” Because the Superior Court had not adopted a rule with the approval of the Court of Appeals that modifies Fed. R. Civ. P. 56, the Court invalidated the discovery limitations in the anti-SLAPP Act.
The D.C. Anti-SLAPP Act
The District’s Anti-SLAPP Act,5 like comparable statutes in other jurisdictions, provides procedural mechanisms to dismiss so-called “strategic lawsuits against public participation.” The moving party may file a “special motion to dismiss” seeking to make a “prima facie showing” that the claim arose from “an act in furtherance of the right of advocacy on issues of public interest.”6 If the movant makes the prima facie showing, the Act shifts the burden to the claimant to establish a probability of winning the suit. Filing the motion stays discovery,7 although the court has some discretion “[w]hen it appears likely that targeted discovery will enable the plaintiff to defeat the motion and that the discovery will not be unduly burdensome.”8 As construed by the D.C. Court of Appeals, “discovery normally will not be allowed.”9 If the claimant fails to establish a probability of winning, the special motion “shall be granted” with prejudice and the court will presumptively award attorney’s fees to the prevailing movant.10
The legislative history of the Act describes a SLAPP as an action “‘filed by one side of a political or public policy debate aimed to punish or prevent the expression of opposing points of view.’”11 However, the D.C. Court of Appeals has construed the Act not to require proof of any expression-suppressing motive on the part of the plaintiff.12,13 The fee-shifting provision kicks in even if the plaintiff’s goal is simply to require correction of false statements.
Anti-SLAPP motions are often filed in defamation cases, and in many of those cases the defendants claim that the plaintiff is a public figure who must prove “actual malice”—the defendant’s knowledge that the statements they have made are false, or reckless disregard for whether they are true—not just that the statements are false. But the D.C. Anti-SLAPP Act also limits discovery, so the plaintiff is required to show the defendant’s knowledge without having the usual opportunity through discovery to determine what the defendant knew or believed. The result is that a plaintiff may be liable for the defendant’s attorney fees in the defamation action, even if the defendant made false statements and, indeed, even if the defendant did so with actual malice that cannot be established without discovery.
Consequences of Banks
The U.S. Court of Appeals for the D.C. Circuit recently focused on the discovery-limiting aspect of the Act to hold that Anti-SLAPP motions cannot be heard in diversity cases in federal court because the discovery limitation contradicts Fed. R. Civ. P. 56.14Banks has invalidated that limitation, raising the question whether the defendants can now attempt to seek anti-SLAPP fees in federal court after an allotted period for discovery.
Banks also raises the question whether the discovery limitation in the anti-SLAPP Act can be revived in the D.C. Superior Court by the adoption of a local rule in compliance with D.C. Code § 11-946, and whether the Banks court’s reasoning implicates other aspects of the Anti-SLAPP Act.
1. What are the implications of Banks for other aspects of the Anti-SLAPP Act?
In its 2016 decision in Mann, the D.C. Court of Appeals noted two differences between its interpretation of the Anti-SLAPP Act and an ordinary summary judgment motion. The first was the discovery limitation. The second was the allocation to the plaintiff of the burden of proof.15
This is a reversal of the allocation of burdens for dismissal of a complaint under Superior Court Rule of Civil Procedure 12(b)(6), which requires the moving party to show that the complaint's allegations, even if proven, would not state a claim as a matter of law; and for summary judgment under Superior Court Rule of Civil Procedure 56, which requires the moving party to wait until discovery has been completed and then shoulder the initial burden of showing that there are no material facts genuinely in dispute and that the movant is entitled to judgment as a matter of law on the undisputed facts.16
Setting aside the discovery limitation (as Banks would require), the difference in the burden of proof is not altogether clear. Mann states that “[t]he precise question the court must ask, therefore, is 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.”17 That precise question is not the precise question that a court would ask itself in deciding an ordinary motion for summary judgment. And in practice courts are likely to feel freer to consider the credibility of witnesses or the relative strength of inferences that can be drawn from evidence in deciding the reasonable jury question than in deciding if there is a genuinely disputed issue of material fact. In a future case, the Court of Appeals might well decide that the standard for dismissal under the Anti-SLAPP Act is different from the Rule 56 standard, and that applying the Act violates the Home Rule Act for the same reason as the discovery limitation did in Banks.
2. Can the D.C. courts adopt a rule to restore the discovery limitation in D.C. Superior Court, and should they?
Banks notes that unlike other provisions of Title 11 of the D.C. Code, the requirements of § 11-946 can “be modified without congressional action.”18 All it takes is rulemaking by the Superior Court with the approval of the Court of Appeals. In a footnote, the court notes with approval that the Superior Court implemented a new debt collection statute by adopting new rules specific to debt collection cases heard in the small claims branch.19 “At least arguably, this rule amendment averted a conflict between [provisions of the new law requiring certain disclosures to be attached to the complaint and provided before summary judgment] and Super. Ct. Civ. R. 8(a), which ‘mirrors’ FRCP 8(a) in requiring a pleading to contain only a ‘short and plain statement of the claim showing that the pleader is entitled to relief.’”20 The footnote ends by observing “The courts have made no such rule amendment to accommodate the discovery-limiting aspects of the Anti- SLAPP Act’s special-motion-to-dismiss procedure.”21 While it would go too far to treat that footnote as a holding that the Superior Court could reinstate discovery limitations by adopting a rule, it is certainly an invitation to consider doing so.
The adoption of such a rule would probably assure that the D.C. Circuit will stand by its prior decisions holding the D.C. Anti-SLAPP Act inapplicable in federal cases. If the Act were understood to have been stripped of the specific provision that the D.C. Circuit held to conflict with Rule 56 in Tah,22 perhaps there would be room to reconsider. But if the adoption of a rule was understood to make the discovery limitation valid, the conflict between a D.C. procedural requirement in a statute and the Federal Rules would remain. The new Superior Court rule would not, of course, apply in federal court. But it would no longer be possible for a federal court to disregard the discovery limitation as invalidated and effectively stricken from the Act.
One reason not to adopt such a rule is that dismissing complaints and awarding fees to the defendant based on the plaintiff’s inability to proffer clear and convincing evidence of “actual malice” may well be unconstitutional. In Khan v. Orbis Intelligence Ltd.,23 the D.C. Court of Appeals rejected an argument that, so construed, the Anti-SLAPP Act would burden the First Amendment-protected right to petition, but its reasoning does not hold up. The court agreed that “[t]here is no question that ‘filing a complaint in court is a form of petitioning activity,’ and that ‘the Petition Clause protects the right of individuals to appeal to courts and other forums established by the government for resolution of legal disputes.’”24 But it thought there was no constitutional problem because a complaint dismissed under the Anti-SLAPP statute is “baseless” and therefore not constitutionally protected.
There are two ways to understand that ruling, both of which are problematic. The court might mean that the standards for dismissal under the Anti-SLAPP Act render the suit “objectively baseless” as the Supreme Court has used the term. But that simply isn’t true. The Court of Appeals cited the Supreme Court’s decision in Professional Real Estate Investors v. Columbia Pictures,25 which concerned the implied “Noerr” immunity from antitrust liability for petitioning the government, including petitioning through litigation. The “sham” exception to Noerr immunity was for suits filed for a bad purpose. But even a bad purpose did not strip a suit of protection if it was objectively reasonable. “[A]n objectively reasonable effort to litigate cannot be sham regardless of subjective intent.”26 But dismissal under the Anti-SLAPP Act is not a determination of an improper subjective purpose nor is it a determination of an objective lack of merit. Especially if the court were to reinstate discovery limitations, complaints can be dismissed under the Anti-SLAPP Act despite being well-grounded and even meritorious if all the facts were known.
It's also possible to read Khan as an exercise in circular reasoning—that any complaint that gets dismissed under the Anti-SLAPP Act must (therefore) lack objective merit (under the Anti-SLAPP Act). That can’t be the way to measure the effect of the Act on a constitutional right to petition (especially for defamation which was a well-established right of action at the time the First Amendment was adopted). The question is what effect the Act has on a complaint that is either filed for a valid subjective reason or is an objectively reasonable effort to litigate. If such a complaint could be dismissed under the Act and punished by awarding attorney’s fees, then the Act may burden constitutionally protected petitioning.
Even if reinstating the discovery limitation by rule would be constitutional, it would be questionable policy. It is unfair to say that a party which has published a false statement not only can’t be sued to correct the statement but can even collect fees from the plaintiff because the plaintiff can’t prove by clear and convincing evidence that the party acted with knowledge or reckless disregard without discovery. It would be one thing if the Anti-SLAPP Act at least required proof of a bad subjective purpose, but it doesn’t. Instead, the threat of attorney’s fees has the same kind of chilling effect on the right to petition that prompted the Supreme Court to create the actual malice standard to prevent defamation liability from chilling speech.
But creating a rule would present some challenges even if it was constitutional. Unlike the debt collection rules flagged in the footnote and other rules for special categories of cases not generally heard in federal court, the Anti-SLAPP Act would require a new general rule of civil procedure. Placing two very different standards side by side in the same set of rules would require a judicial policy judgment to adjudicate summary judgment in anti-SLAPP cases, most often nowadays defamation cases, by a different set of rules than other cases. While no doubt some will argue for deference to the Council’s judgment, the way the Anti-SLAPP Act is often used in defamation defense has very little to do with the Council’s original purpose. And the whole point of § 11-946 and the Home Rule Act is to leave matters of procedure in the hands of the courts, not the Council. Unlike, say, the debt collection pleading standards cited in the footnote, which can be viewed as within the Council’s power to change the standards for bringing a particular cause of action, the Anti-SLAPP Act is not tied to the elements of any substantive claim. If the courts believed they are required to implement every procedural enactment by the Council, those statutes would be meaningless. The Council, not the courts, would be the final authority on procedure.
1Khan v. Orbis Business Intelligence Ltd., 292 A.3d 244, 260 (D.C. 2023) (declining on the ground that the issue had not been presented and preserved in the trial court).
2 No. 20-CV-0318, 2023 WL 5761926 (D.C. Sep. 7, 2023).
3 Id. at *9 (quoting D.C. Code § 11-946).
4 D.C. Code § 1- 206.02(a)(4).
5 D.C. Code §§ 16-5501 to 16-5505.
6 D.C. Code §§ 16-5502(a), (b).
7 D.C. Code §§ 16-5502(c)(1).
8 D.C. Code §§ 16-5502(c)(2).
9 Fridman v. Orbis Business Intelligence, Ltd., 229 A.3d 494, 512 (D.C. 2020).
10 D.C. Code §§ 16-5504(a); Doe v. Burke, 133 A.3d 569, 571 (D.C. 2016).
11Competitive Enter. Inst. v. Mann, 150 A.3d 1213, 1226 (D.C. 2016) (quoting Council of the District of Columbia, Report of Comm. on Pub. Safety and the Judiciary on Bill 18-893, at 1 (Nov. 18, 2010) (hereinafter, the “Report on Bill 18-893”)).
12Doe v. Burke, 133 A.3d 569, 571 (D.C. 2016).
13 The statutory requirement for “a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest,” D.C. Code § 16-5502(b), does, in the kind of action envisioned by the Council, mean that there is at least some objective connection between the action and protected activity from which some motive to stifle might be inferred. But the defendants in every defamation case will point to the allegedly defamatory publication as satisfying this requirement. Thus it becomes an automatic element of the defense arsenal in defamation cases on top of the various constitutional obstacles to recovery for false statements.
14Tah v. Global Witness Publishing, Inc., 991 F.3d 231, 239 (D.C. Cir. 2021). See Competitive Enterprise Inst. v. Mann, 150 A.3d 1213, 1238 n.32 (D.C. 2016) (agreeing that contrary to Rule 56, the Act requires the court to determine the legal sufficiency of the claims before completion of discovery).
15Mann, 150 A.3d at 1238 n.32.
16 Mann, 150 A.3d at 1237.
17Id. at 1236.
18 2023 WL 5761926 at *9.
19 2023 WL 5761926 at *9 n.22.
20Id.
21 Id.
22Tah v. Global Witness Publishing, Inc., 991 F.3d 231, 239 (D.C. Cir. 2021).
23 292 A.3d 244, 260 (D.C. 2023).
24Id. at 255.
25 508 U.S. 49 (1993).
26Id. at 57. The Court offered this definition of “sham”:
First, the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits. If an objective litigant could conclude that the suit is reasonably calculated to elicit a favorable outcome, the suit is immunized under Noerr, and an antitrust claim premised on the sham exception must fail. Only if challenged litigation is objectively meritless may a court examine the litigant's subjective motivation. Under this second part of our definition of sham, the court should focus on whether the baseless lawsuit conceals "an attempt to interfere directly with the business relationships of a competitor," through the "use [of] the governmental process —as opposed to the outcome of that process—as an anticompetitive weapon."
508 U.S. at 60-61 (citations and footnotes omitted). The requirement of a bad subjective motive and the absence of an objectively reasonable basis in fact or law is also the standard the Supreme Court applies to NLRB actions to penalize baseless litigation to retaliate against protected union activity. Bill Johnson Restaurants, Inc. v. NLRB, 461 U.S. 731, 748-49 (1983).
