Note: This page covers information specific to The District of Columbia. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.
The District of Columbia Anti-SLAPP Act of 2010, D.C. Code 16-5502, allows you to counter a SLAPP suit against you based on your statements involving matters of public concern by filing a special motion to dismiss. The Act also allows for the stay of discovery proceedings when the special motion to dismiss is pending, with certain exceptions. Finally, if a party to a SLAPP suit seeks your personal identifying information, the Act allows you to make a special motion to quash the discovery order, request, or subpoena.
The D.C. Anti-SLAPP Act of 2010 applies to suits based on written or oral statements regarding (1) an issue being considered by a governmental body; (2) governmental or official proceedings; or (3) issues of public interest made in a public forum. It also applies to suits concerning any expressive conduct involving petitioning the government or communicating with the public regarding issues of public interest. Certain commercial statements are specifically outside the protections of the Act.
The D.C. Anti-SLAPP statute has been invoked in several cases in the District of Columbia. If you know about any additional relevant cases, please contact us.
Activities protected by the D.C. Anti SLAPP Statute
To challenge a lawsuit under the D.C. Anti-SLAPP Act, you must show that it is based on your act or acts "in furtherance of the right of advocacy on issues of public interest." It defines "an act in furtherance of the right of advocacy on issues of public interest" as
(A) Any written or oral statement made:
(i) In connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; or(B) Any other expression or expressive conduct that involves petitioning the government or communicating views to members of the public in connection with an issue of public interest.
(ii) In a place open to the public or a public forum in connection with an issue of public interest; or
The Act defines an "issue of public interest" as "an issue related to health or safety; environmental, economic, or community well being; the District government; a public figure; or a good, product or service in the market place." The Act specifically excludes "private interests, such as statements directed primarily toward protecting the speaker's commercial interests rather than toward commenting on or sharing information about a matter of public significance" from the definition of an "issue of public interest."
Similarly, the D.C. Anti-SLAPP statute specifically does not apply to suits which are:
brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct from which the claim arises is:
(1) A representation of fact made for the purpose of promoting, securing, or completing sales or leases of, or commercial transactions in, the person's goods or services; and
(2) The intended audience is an actual or potential buyer or customer.
Until judicial guidance is available, the scope of commercial statements excluded from the protection of the protection of the Act will remain subject to interpretation.
Protections for Personal Identifying Information Sought in a SLAPP suit
In addition to allowing a defendant in a SLAPP lawsuit to seek dismissal of the suit, the D.C. Anti SLAPP statute also provides some protections if your personal identifying information is sought, "pursuant to a discovery order, request, or subpoena, in connection with a claim arising from an act in furtherance of the right of advocacy on issues of public interest." On its face, this provision is not limited to parties to the lawsuit, and thus might potentially be used by witnesses or other targets of discovery that are not parties.
As used in this provision, "an act in furtherance of the right of advocacy on issues of public interest," has the same definition as discussed above.
"Personal identifying information" includes information such as your name, address, and social security number. More specifically, the Act defines "personal identifying information" by reference to section 127a(3) of the District of Columbia Theft and White Collar Crimes Act of 1982 (D.C. Law 4-164, D.C. Code § 22-3227.01(3)). By this reference, "personal identifying information" also includes information such as financial account numbers, government identification numbers (like those on driver's licenses and passports), signatures, biometric data, and employment history.
How to use the District of Columbia Anti-SLAPP statute
The D.C. Anti-SLAPP Act of 2010 gives you the ability to file a special motion to dismiss within 45 days after service of the claim. (You may also have other bases to move to dismiss under other rules or statutes; you should consult an attorney as to whether deadlines for other motions are affected by the filing of a special motion to dismiss under the Anti-SLAPP Act.) The Superior Court of the District of Columbia has denied at least one special motion to discuss under the D.C. Anti-SLAPP Act for failing to file the motion in a timely manner, although the court noted that, in other cases, "the court might very well conclude that the ameliorative purpose of the Act requires a more flexible interpretation of the forty five day framework." Newmyer v. Sidwell Friends School, No. 2011 CA 003727 M (D.C. Super. May 22, 2012); see also Sherrod v. Breitbart, 843 F. Supp. 2d 83, 86 (D.D.C. 2012) (denying defendant's motion to dismiss under the D.C. Anti-SLAPP Act in part because the motion to dismiss was filed more than forty five days after service of the claim).
The special motion to dismiss must make 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, as defined above. If you make such a prima facie showing, the motion will be granted unless the plaintiff (the party responding to your motion) shows that the claim is likely to succeed on its merits. If the plaintiff shows that the claim is likely to succeed on its merits, the motion to dismiss will be denied.
The court must hold an "expedited hearing" on the special motion to dismiss and issue a ruling "as soon as practicable" after the hearing. If the special motion to dismiss is granted, dismissal shall be with prejudice, meaning that the plaintiff cannot refile her claim against you.
After you file your special motion to dismiss, the Act provides that discovery proceedings on the claim will be stayed, or postponed, until the court disposes of the motion -- that is, the plaintiff generally may not ask you to produce documents, sit for a deposition, or answer formal written questions. However, if it "appears likely" that targeted discovery will enable the plaintiff to defeat the special motion to dismiss and that the discovery will not be unduly burdensome, the court may order "specialized discovery." The court's order may be conditioned upon the plaintiff paying any expenses you incur in responding to such discovery.
In addition to creating the special motion to dismiss, the Act also allows a person whose personal identifying information is sought in connection with a claim arising from an act in furtherance of the right of advocacy on issues of public interest to file a special motion to quash -- that is, to void or terminate the subpoena, request, or discovery order seeking your personal identifying information so you do not have to provide that information.
To succeed in your motion to quash, you must make a prima facie showing that the underlying claim arises from an act in furtherance of the right of advocacy on issues of public interest, as defined above. If you make such a prima facie showing, the motion to quash will be granted unless the plaintiff shows that the claim is likely to succeed on its merits. If the plaintiff shows that the claim is likely to succeed on its merits, the motion to quash will be denied.
If your special motion to dismiss is denied, you may want to appeal. The District of Columbia Court of Appeals has held that immediate appeal is not available for denials of a special motion to dismiss under the D.C. Anti SLAPP statute. Newmyer v. Sidwell Friends School, No. 2011 CA 3727 (D.C. Dec. 5, 2012). That means that you cannot appeal the denial immediately when the denial order is entered, but rather must wait until the end of the entire trial to appeal the denial of your special motion to dismiss. The issue of whether immediate review is available to appeal denials of special motions to dismiss under the Act is at issue in a case pending before the United States Court of Appeals for the District of Columbia Circuit in Sherrod v. Breitbart, No. 11-7088.
Retroactivity
At least one federal court has held that the D.C. Anti-SLAPP Act does not apply retroactively to lawsuits filed before the effective date of the Act, March 31, 2011, although the case is currently on appeal to the United States Court of Appeals for the District of Columbia Circuit. See Sherrod v. Breitbart, 843 F. Supp. 2d 83, 84 85 (D.D.C. 2012). However, the Superior Court of the District of Columbia has held in at least one case that the Act applies retroactively. Lehan v. Fox Television Stations, Inc., No. 2011 CA 004592 B, 2011 D.C. Super. LEXIS 14 (D.C. Super. Nov. 30, 2011).
What Happens If You Win A Motion To Dismiss Or Quash
If you prevail, in whole or in part, on your special motion to dismiss or special motion to quash, the Act provides that the court "may" award you "the costs of litigation, including reasonable attorney fees." Note that the statutory language is permissive; while the court may award you these costs, it is not required to do so. The Act also restricts the court's ability to award the plaintiff attorneys' fees and costs if you do not prevail. In that case, the Act allows the court to award the plaintiff costs only if it finds that your motion is "frivolous" or "solely intended to cause unnecessary delay." The Superior Court of the District of Columbia has awarded attorneys' fees to the plaintiff in at least one case in which it found the special motion was frivolous, i.e. "‘wholly lacking in substance' and not ‘based upon even a faint hope of success on the legal merits.'" Newmyer, No. 2011 CA 003727 M (quoting In re Spikes, 881 A.2d 1118, 1125 (D.C. 2005)).
If you succeed in fending off a SLAPP lawsuit in the District of Columbia, you may be able to bring a claim of malicious prosecution against the original plaintiff. While the District of Columbia does not have a special form of process for a "SLAPPback" claim, the elements of a malicious prosecution claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.
The D.C. Anti-SLAPP Act in the Federal Courts
The United States District Court for the District of Columbia has issued conflicting opinions on whether the D.C. Anti-SLAPP Act applies in federal court in lawsuits brought under the court's diversity jurisdiction. Cf. Farah v. Esquire Magazine, Inc., 863 F. Supp. 2d 29, 36 n.10 (D.D.C. 2012) (holding that the D.C. Anti-SLAPP statute does apply to federal diversity cases); 3M Co. v. Boulter, 842 F. Supp. 2d 85, 111 (D.D.C. 2012) (holding that the D.C. Anti-SLAPP statute does not apply to federal diversity cases); 3M Co. v. Boulter, No. 11-cv-1527 (RLW), 2012 U.S. Dist. LEXIS 151231 (D.D.C. Oct. 22, 2012) (same). Several cases that may resolve this issue are currently pending on appeal before the United States Court of Appeals for the District of Columbia Circuit.
The Citizen Media Law Project would like to thank Caitlin Vogus for her contributions to this article, and for her extensive work on the Legal Guide over the past several years.
