Does a party moving under the DC anti-SLAPP statute need to show that the claim arises from a statement made in connection with an issue of public interest?  While the text of the DC anti-SLAPP statute suggests the answer is no, the Vermont Supreme Court, interpreting Vermont’s virtually-identical anti-SLAPP statute, recently held that the answer is yes.

The DC anti-SLAPP statute provides that a party may file a special motion to dismiss any claim arising from an “act in furtherance of the right of advocacy on issues of public interest . . .”.  It defines “act in furtherance of the right of advocacy on issues of public interest” to mean:

  1. an oral or written statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;
  2. an oral or written statement made in a place open to the public or a public forum in connection with an issue of public interest; or
  3. 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.

On its face, the DC anti-SLAPP statute thus applies to “an oral or written statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law,” without including the “public interest” requirement found in the other subsections of the statute.

In a recent decision, the Vermont Supreme Court was asked to decide if this interpretation of Vermont’s anti-SLAPP statute was correct.  Like the DC anti-SLAPP statute, the Vermont statute states that “[a] defendant in an action arising from the defendant’s exercise, in connection with a public issue, of the right to freedom of speech or to petition the government for redress of grievances under the United States or Vermont Constitution may file a special motion to strike under this section.”

Like the DC anti-SLAPP statute, the Vermont statute defines the statute’s operative language:  “[a]s used in this section, ‘the exercise, in connection with a public issue, of the right to freedom of speech or to petition the government for redress of grievances under the United States or Vermont Constitution’ includes:

  1. any written or oral statement made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;
  2. any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;
  3. any written or oral statement concerning an issue of public interest made in a public forum or a place open to the public; or
  4. any other statement or conduct concerning a public issue or an issue of public interest which furthers the exercise of the constitutional right of freedom of speech or the constitutional right to petition the government for redress of grievances.”

In Felis v. Downs Rachlin Martin, PLLC, one of the defendants (GFC) was hired by attorneys representing a spouse in a contentious divorce action to appraise the other spouse’s interest in several business enterprises.  After the divorce was finalized, the plaintiff sued GFC, alleging that its expert testimony in the prior divorce proceeding was part of a strategy to unnecessarily run up fees.

GFC moved to dismiss the Complaint for a variety of reasons, including that, because the challenged statements were made “before a . . . judicial proceeding,” the suit was foreclosed by Vermont’s anti-SLAPP statute.  The trial court granted GFC’s motion to dismiss on other grounds and, as a result, held that the anti-SLAPP motion was moot.  The Vermont Supreme Court affirmed the dismissal.  Notwithstanding this ruling, it held that it needed to decide if dismissal was also proper under the anti-SLAPP motion because, if that motion was successful, GFC might be able to recover its attorneys’ fees.

The Felis court described the issue as follows:

Section 1041(a) provides that the statute applies to actions “arising from the defendant’s exercise, in connection with a public issue,” of free speech and petitioning rights. Section 1041(i), in turn, lists four specific types of activity that fall within the language of § 1041(a) – the “exercise, in connection with a public issue,” of free speech and petitioning rights. The descriptions of the activities set forth in §§ 1041(i)(3) and (4) expressly include the element “concerning an issue of public interest.” The descriptions of the activities in §§ 1041(i)(1) and (2) – including the activity applicable here, testimony in a judicial proceeding – do not contain that element. GFC therefore argues that the statute does not require testimony in a judicial proceeding to concern a public issue. To put it another way, GFC’s reads the statute to mean that all testimony in a judicial proceeding inherently concerns a public issue.

The Felis court acknowledged that GFC’s interpretation was the “most consistent” with the statute’s language, and that it was consistent with a prior federal court decision holding that “a defendant need not demonstrate that a statement concerns a public issue if it falls within § 1041(i)(1) or (2)” of the Vermont anti-SLAPP statute.  The Felis court also conceded that GFC’s interpretation was consistent with a decision from the California Supreme Court, interpreting California’s anti-SLAPP statute (which served as the model for the Vermont anti-SLAPP statute).

Notwithstanding these concessions, the Felis court rejected GFC’s interpretation.  It held that the statute “was internally inconsistent and ambiguous” because, according to the court, “subsection (a), which governs the scope of the statute generally” “requires the defendant’s exercise of constitutional rights be in connection with a public issue,” while subsection (i) does not contain this requirement.

Having concluded that the statute was ambiguous, the court turned to legislative intent.  It explained that the Vermont legislature enacted the anti-SLAPP statute to “address[] the increase in lawsuits brought to chill free speech and petitioning rights” and “to encourage continued participation in matters of public significance.”  Thus, reasoned the Felis court, “the intent of the bill was to prevent retaliatory litigation against citizens exercising their right to free speech and their right to petition the government on matters of public interest. . . . We conclude from the legislative history that the Legislature intended that the protected actions be connected to matters of public interest and intended to make that connection an element of an anti-SLAPP motion.”

The Felis court appeared to fear that the alternative interpretation advanced by GFC would flood the Vermont courts with anti-SLAPP motions that were raised in cases that have nothing to do with the public interest.  It noted that this happened in California – “where California’s statute has been invoked in thousands of cases on a broad range of legal issues and filing a motion under the statute has become almost a matter of course.”

Consequently, the court reasoned, because “there is no evidence that the Vermont Legislature intended, or even foresaw, the expansive use of the anti-SLAPP remedy in circumstances far afield from the paradigm on which the statute was based” the “way to reduce overuse of the remedy is to enforce the requirement of § 1041(a) that a defendant’s exercise of constitutional rights be in connection with a matter of public issue, as the legislative history demonstrates the Legislature intended.”

My takeaway: it is hard to read the court’s opinion as anything other than visceral reaction that anti-SLAPP motions were going to flood the courts.  That fear appears unfounded because, as the court’s opinion reflects (ironically), this was the first case interpreting the Vermont anti-SLAPP statute to reach the state’s highest court in the 10 years since the statute became effective.

At the end, I believe the court’s initial conclusion was wrong.  The Vermont legislature, like the California legislature and the DC legislature, defined the statute to apply to various circumstances.  Some require a nexus to an issue of public interest.  But others do not.  There is nothing ambiguous about that decision.  Instead, the legislature made a decision that, if it is a written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, it is ipso facto, an issue of public interest.

The more immediate question is whether this interpretation will impact the DC anti-SLAPP statute.  To date, at least two courts interpreting that statute have agreed that, because the claims arise from statements made in connection with an issue under consideration by a legislative, executive, judicial or other official proceeding authorized by law, they are covered by the DC anti-SLAPP statute.

For example, in Payne v. District of Columbia, the plaintiff alleged that the District’s then-CFO, defamed him when he publicly stated that the plaintiff was terminated for poor performance.  Payne alleged that this statement was false, and was inconsistent with multiple statements made by the same individual in a then-pending wrongful termination lawsuit.  The Superior Court granted the defendants’ anti-SLAPP motion, finding that the defamation lawsuit arose from activity within the scope of the statute because it was connected with the ongoing litigation:

the claims at issue fall under the broad umbrella of the anti-SLAPP Act.  First, Defendant Gandhi’s statements were made in connection to an issue under review by a judicial body.  At the time the statement was made, Plaintiff and Defendant were in the midst of litigation surrounding Plaintiff’s termination Am. Compl. 2.  Defendant submitted evidence that Plaintiff and his attorneys had been discussing the lawsuit with various media and press outlets. Def. Exhibit A. Plaintiff does not deny this. In that context, a reasonable person would understand that Defendant’s statement was related to the case under review, as it was a public statement of Defendants’ position in that case.

Similarly in Forras v. Rauf, in granting an anti-SLAPP motion brought in response to a lawsuit alleging that statements made in judicial submissions were false and defamatory, the DC federal court held that “Bailey’s statements about Forras and Klayman were made in Bailey’s Motion to Dismiss the pending action before the Supreme Court of the State of New York, New York County. Therefore, Bailey’s statements qualify as ‘written…statement[s] made . . .[i]n connection with an issue under consideration or review by a . . . judicial body.’ D.C. Code § 16–5501(1)(A).”

Neither the Payne nor the Forras court held that, to be covered by this prong of the statute, a movant needed to show that the statement was related to an issue of public interest.  In Vermont, however, this showing is now required.  It remains to be seen if this argument will now be advanced in the District.