The first time Burke v. Doe was before the District of Columbia Court of Appeals, it established new law, with the Court establishing that the denial of a special motion to dismiss was immediately appealable.  Burke II is now before the Court, and also has the potential to be precedent setting.  Here’s why.

In Burke I, the Court of Appeals held that the Superior Court erred in not granting a special motion to quash, brought under the DC Anti-SLAPP statute, in response to an effort to discover the identity of an anonymous Wikipedia editor.  The Court of Appeals remanded the case to the Superior Court “with instructions to enter an order granting Zujua’s special motion to quash Ms. Burke’s subpoena” and to consider the movant’s request for attorneys’ fees:

Although Zujua argues on appeal that he was entitled to attorney fees pursuant to D.C. Code § 16-5504(a), the trial court never addressed this motion because Zujua did not prevail below.  In the absence of a ruling from the trial court, we do not address this argument on appeal.  Zujua may renew his claim for attorney fees once the trial court enters its order quashing the subpoena.

When the case returned to the Superior Court, the movant (Zujua) renewed his request for attorneys’ fees.  His motion explained that: (a) he had prevailed on his anti-SLAPP motion despite vigorous opposition by Burke and, in the process, had established new law; (b) the statute allowed for the recovery of attorneys’ fees by a successful movant; (c) the fees/costs were reasonable.

Burke’s opposition brief, unsurprisingly, disagreed with his arguments.  First, Burke argued, her case was not a “classic SLAPP,” but rather a legitimate effort to discover the identity of the person who was defaming her, whom she believed was directly connected with a former adversary.  Burke revealed that, during the litigation, she offered to dismiss Doe from the case if he submitted an anonymous affidavit confirming that he was not acting as an agent for her former adversary, but that he refused this offer.  Her offer, Burke argued, showed that she was not attempting to stifle speech through protracted litigation.

Burke also argued that, because the DC anti-SLAPP statute provided that the Court “may” award fees to a successful movant (the actual language is that “the court may award a moving party who prevails, in whole or in part, on a motion brought under . . . §16-5503 the costs of litigation, including reasonable attorney fees”), that provided the court discretion in whether to award fees.

Finally, Burke argued that Doe’s attorneys litigated the case pro bono as part of an effort to advance “an anti-government, anti-regulatory agenda of certain private, for-profit businesses,” which included publicizing their defense of Doe in a solicitation for donations, and that their successful defense was a sufficient reward, without an award of attorneys’ fees.

The issue of whether Burke’s case was a SLAPP was settled by the Court of Appeals, Doe argued in his reply brief, when it held that the statute applied to the speech.  Thus, according to Doe, the Superior Court should not (or could not) revisit Burke’s motivations for filing the action.  Doe next argued that, while the statute used the word “may,” that was only to be consistent with other DC statutes that used similar language, but which had been interpreted to require the imposition of attorneys’ fees:

[T]he word “may” was used in place of “shall” in that provision to harmonize it with other D.C. and federal statute that had been construed for years, despite their use of the term “may,” to all-but-require that fees be awarded to eligible parties.  Such harmonization was intended to make the same construction applicable to §16-5504, while avoiding the implication, which would have arisen had “shall” been used, that it was no longer a valid construction of those other statutes.

Finally, argued Doe, the fact that its outside counsel litigated the case pro bono, and that the case was in accord with the mission statement of its outside counsel, had no bearing on whether fees should be awarded to Doe, as the moving party.

In May, the Superior Court denied Doe’s motion for fees. The Superior Court agreed with Burke that the case was not a “classic SLAPP,” of the type contemplated by the DC Council, but was instead what Burke “believed to be a meritorious suit to recover for the harm caused by the false statements made via anonymous Wikipedia edits.”  In so holding, the Superior Court credited Burke’s argument that, by offering to dismiss the suit if Doe disclaimed any agency status, she was not engaging in protracted, unnecessary litigation.

The Superior Court also held that, under the statute, “attorneys’ fees are not presumed, but instead are discretionary, requiring a weighing of the equities,” and that, weighing the equities, the court believed no fees should be awarded.  In so holding, the court explained that:

  • the case was not a classic SLAPP, as evidenced by Burke’s willingness to dismiss the suit in exchange for a declaration and the fact that all of the important issues (whether the case fell within the scope of the statute, whether Burke was a public figure, the commercial exception, whether the denial of a motion to quash was immediately appealable), were closely decided;
  • Doe’s counsel “needed no incentive to take on Defendant’s case” because of the organization’s mission statement so that, “in protecting Defendant’s right to anonymous free speech, counsel has already achieved an award by succeeding in its own interest”;
  • while the case was “precedent-setting,” many attorneys contributed to the jurisprudence, includingamici so that “[t]o grant attorneys’ fees in his case based on the significance of the contributions made by Defendant’s counsel alone would necessarily diminish the equally noteworthy contributions of Plaintiff and amici who submitted compelling arguments to the Court of Appeals during this complex litigation.”

Doe has now filed his opening brief in the Court of Appeals.  In it, he challenges every aspect of the Superior Court’s decision.  According to Doe, a successful moving party on a special motion to quash is presumptively entitled to fees, and such an award is consistent with the statute’s purpose, its legislative history, the structure of the statute and relevant caselaw.  Give this, Doe argues, it was an abuse of discretion for the Superior Court to deny his request for fees.  Finally, according to Doe, even if the Superior Court had discretion in considering whether to award fees, the Superior Court here relied upon “improper and irrelevant factors” in denying his request for fees.

The ACLU and Reporters’ Committee for Freedom of the Press have filed an amicus brief in support of Doe.  In it, they argue that, when the Court of Appeals held that Doe was entitled to dismissal under the anti-SLAPP statute, that decision “necessarily encompassed a holding that Ms. Burke’s lawsuit was a SLAPP within the meaning of that Act” that the Superior Court was prohibited from revisiting on remand.  Next, they argue, while the Superior Court held that Burke’s suit was not frivolous or meritless, that analysis was not relevant to whether it was a SLAPP; rather, the only question was whether it was covered by the provisions of the statute, which it was.

The amici also disagree with the Superior Court’s conclusion that an award of fees is discretionary, arguing that conclusion was contradicted by the terms of the statute and its legislative history.  They argue that an award of attorneys’ fees to the prevailing party “is also essential to achieving the objectives of the anti-SLAPP statute” because it provides a strong incentive to defendants to stand up for their rights, instead of capitulating early in litigation, provides a basis to attract lawyers, and provides a disincentive to litigants who might be contemplating initiating speech-chilling lawsuits.

Finally, the amicus brief challenges the Superior Court’s rationale for denying an award of fees.  It argues that the motivations of Doe’s counsel are irrelevant because the fees go to Doe, as the prevailing party and, in any event, the motivations of outside counsel are always irrelevant in fee determinations.  Amici also argue that the contributions of others to the jurisprudence is not a reason to deny an award of fees to Doe’s counsel.

The importance of this appeal cannot be overstated.  Fee shifting is a critical component of anti-SLAPP statutes and this case will provide important guidance on how the fee-shifting provision of the DC anti-SLAPP statute works.