I have previously blogged about the defamation lawsuit between the Center for Advanced Defense Studies (C4ADS) and a Ukraine-based shipping company, Kaalbye Shipping International, in which Kaalbye alleged that that a C4ADS report about the shipments of Russian and Ukrainian arms defamed it. On Tuesday, the DC Superior Court granted C4ADS’s anti-SLAPP motion in a lengthy Opinion, concluding that Kaalbye had not provided evidence of damages and that the challenge statements were protected opinion, not defamatory or not made with actual malice. Here are three takeaways
First, the C4ADS court disagrees with other DC courts and holds that the phrase “likely to succeed” means that, to avoid dismissal, a non-movant must “prove a likelihood of success on the merits, not that its claims pass master under the standards of Super. Ct. R. Civ. P. 12(b)(6) or Super. Ct. R. Civ. P. 56.” (As the opinion notes, other DC Courts had looked to California’s (arguably weaker) “probability” standard).
In holding that “likely to succeed” requires more than a showing of a prima facie case, the C4ADS court relies on the fact that the phrase “‘likely to succeed’ closely mirrors the language of the preliminary injunction standard, which requires that a movant show a ‘substantial ikelihood that he will prevail on the merits.’” The C4ADS court also reasons that the standard must be higher than a Rule 12/56 standard because “construing the statute to merely replicate the defense tools already available under Super. Ct. R. Civ. P. 12(b)(6) or Super. Ct. R. Civ. P. 56 would thwart the plain legislative purpose of the SLAPP Act.”
This portion of the Court’s opinion seems correct to me. The DC anti-SLAPP statute has different language than the California statute, so the California law seems inapplicable to the District of Columbia anti-SLAPP statute. And if a non-movant need only show that it can survive a motion to dismiss/summary judgment, then what is the purpose of the anti-SLAPP act?
(Interestingly, during argument at the DC Court of Appeals in the Mann case, counsel for CEI made the express argument adopted by the C4ADS court: that the language of the statute and its legislative history showed that the DC Council elected to impose a higher standard than California’s “probability” standard, one that was more demanding than Rule 12(b)(6) or Rule 56, and one similar to what a judge might make at the preliminary injunction stage).
Second, the C4ADS court holds that “the SLAPP Act – once the moving party has shown that it is covered by the statute – requires the nonmoving party to demonstrate that its claim is likely to succeed on the merits after being provided with an opportunity to present evidence to the court at an expedited hearing.” While I appreciate the Court’s ruling here, the Opinion notes that there were nine different hearings, over seven months. I’m not sure that the drafters intended the SLAPP motion process to devolve into a mini-trial (although that often happens in the preliminary injunction arena…).
Finally, the procedural posture of the case was unique. After the report was initially published, Kaalbye began complaining about it/threatening suit. In response, C4ADS filed suit, seeking a declaration that its report was not defamatory. Kaalbye then followed through on its threats and filed a counterclaim for defamation. As such, this was not the “typical” scenario where the defendant files an anti-SLAPP motion (although the statute clearly applies to “counterclaims”). I wonder if other parties threatened with a libel suit will take the declaratory judgment route in the future.