When Puff Daddy (n/k/a Diddy; f/k/a P. Diddy, Sean Combs, Puffy) rapped “Its all about the Benjamins,” I doubt he was thinking about the Forras v. Rauf case.  (For background on the case, see prior posts here, and here, and here).  But, now that the DC Circuit briefing is complete in that case, it is clear that the appeal really is all about the Benjamins!  Let me explain.  

The defendants’ opposition brief shows, in stark detail, exactly why the DC anti-SLAPP statute was passed.  In a lengthy fact section, it chronicles the appellants efforts to punish them for speaking, first in New York state court, then in the DC Superior Court and finally in DC federal court.  The opposition brief also persuasively argues that: (a) the DC anti-SLAPP statute applies in federal court (pages 18-25); (b) the appellants waived their argument that the statute violates the Seventh Amendment and, in any event, are incorrect (pages 25-28); and (c) the District Court properly dismissed the Complaint because there was no jurisdiction, the claims were time-barred, the claims were barred by res judicata, or the challenged speech was privileged (pages 31-53).

The DC Circuit is going to hold that dismissal of the Complaint was proper, for one of these many reasons.  For the defendants, then, the only real question is whether they will be able to recover their fees.  While the DC anti-SLAPP statute contains a fee-shifting mechanism, the appellants have argued that the District Court erred by applying the statute because the anti-SLAPP motion was made more than 45 days after service.

In response, the defendants argue that the District Court was required (under Colorado River abstention) to stay the federal court action because of the pending parallel DC Superior Court action, so that the circumstances in this case are materially different from Sherrod, where the defendant simply secured an extension of time to respond to the Complaint (an extension the DC Circuit later held could not be given).  “Because a stay under Colorado River abstention was mandatory, and the District Court would have therefore been unable to act on an Anti-SLAPP Act motion filed by Defendant Bailey,” the defendants argue, “it was proper for the District Court to equitably toll the time to file such a motion.”  It remains to be seen whether the DC Circuit accepts this argument.

Ultimately, however, the only difference in whether the dismissal is under the DC anti-SLAPP statute or under Rule 12(b)(6) is the defendant’s ability to recover his fees.  Understanding that the DC anti-SLAPP statute may not ultimately be the procedural vehicle, the defendant finally argues that fees should be awarded as a sanction.

The District of Columbia also submitted an amicus brief on the Erie and Seventh Amendment issue.  It was similar to the brief it submitted on these two issues in the Adelson case in the Southern District of New York.

The appellants’ reply brief generally repeats the arguments they made in their opening brief.  You can read it here.