Here are my three takeaways from yesterday’s DC Court of Appeals’ decision, holding that a successful movant under the DC anti-SLAPP statute “is entitled to reasonable attorney’s fees in the ordinary course – i.e.,presumptively – unless special circumstances in the case make a fee award unjust,” and reversing a Superior Court decision which refused to award fees to a successful movant.  (You can read my prior blog post on this appeal here).

First, the Burke II court specifically refuted the argument that the DC anti-SLAPP statute applies only to a “classic” SLAPP suit.  (I have written previously about the tendency for parties, and courts, to fall into this trap).  According to the Burke II court:

nowhere does the Act refer to or define a “classic” SLAPP suit as distinct from one against which the defendant may invoke the statute’s protections after a threshold prima facie showing. . . .  The protections of the Act, in short, apply to lawsuits which the D.C. Council has deemed to be SLAPPs. . .

Second, the court held that a successful SLAPP movant is presumptively entitled to recover attorney’s fees, without any additional showing of frivolousness or wrongful motivation.  The Burke II court grounded its finding in the statute’s language, which imposed a frivolousness requirement in order for the party opposing the anti-SLAPP motion to recover its fees, but did not include a similar requirement for a successful movant:

In clear contrast to the responding party’s eligibility for fees, the Act imposes no requirement on a successful movant under § 16-5504(a) to show either of the twin facts relied on by the trial court – improper motive (bad faith) or total lack of merit in the underlying suit – before reasonable attorney’s fees may be awarded.

Third, the court held that, although the statute provided that the court “may” award fees to a successful anti-SLAPP movant (suggesting an element of discretion), both the statue’s stated purpose (“to award the costs of litigation to the successful party on a special motion”) and its legislative history (which based the DC anti-SLAPP statute on then-pending federal legislation that provided for the recovery of attorneys’ fees) supported a finding that a successful anti-SLAPP movant was presumptively entitled to recover its fees.

As I’ve previously written, attorneys fees are an important component of anti-SLAPP statutes.  This strong opinion, affirming a presumptive right to recovery by a successful movant, will go a long way towards providing the DC anti-SLAPP statute with teeth.