In the three plus years since the DC anti-SLAPP statute first became effective, parties have argued that it violates the Home Rule, cannot be used retroactively, cannot be applied in federal court, and does not apply to motions made more than 45 days after service.  Now, in a galaxy far, far away (well, actually New York), a high-profile plaintiff is asserting a new argument: that the statute violates the Seventh Amendment.  

Sheldon Adelson is reportedly one of the richest people in the world.  In July 2012, the National Jewish Democratic Council published an article on its website in which it reported that Adelson had personally approved of prostitution in his casinos, and urged then-Presidential candidate Mitt Romney to reject his “dirty money.”  The NJDC article was apparently based on an Associated Press article, which cited to an affidavit filed by a former Adelson casino employee in a lawsuit in which he made the specific allegation.  

Adelson responded by filing a libel suit in New York federal court against the NJDC and others he alleged were responsible for the article.  The defendants, in turn, filed a motion to dismiss under both the federal rules and the DC anti-SLAPP statute.  Although the lawsuit was brought in New York, they argued that DC law should apply because the NJDC and one of the individual defendants were domiciled in DC; the other individual defendant was physically in DC when he drafted the allegedly defamatory statement; and all of the allegedly defamatory statements were drafted and disseminated in DC. 

Under the DC anti-SLAPP statute, they argued, Adelson could not carry his burden of showing that he was likely to prevail on the merits because the statement that Adelson personally approved of prostitution in his Macau casinos was based on a report in a judicial proceeding, and was thus privileged.  They argued that other portions of the allegedly defamatory publication were either protected expressions of opinion or privileged “fair comment.” 

Adelson’s opposition argues that the law of Nevada – and not DC – applied to the case because Nevada was where he lived and worked.  He argued that, even if DC law applied to the case, the DC anti-SLAPP statute was “unconstitutional under the Seventh Amendment.”  According to Adelson, the DC anti-SLAPP statute conflicts with the Seventh Amendment (which preserves the right to trial by jury) by allowing the judge to “make determinations of disputed issues of material fact, weigh evidence, and determine whether a plaintiff’s claims are ‘likely to succeed on the merits,’” which, Adelson argues, are all jury questions. 

Additionally, Adelson’s opposition brief includes the now common argument that the DC anti-SLAPP statute cannot be applied in federal court under Erie, citing the 3M decision.  Finally, Adelson argues, he can show a likelihood of success on the merits, requiring denial of the anti-SLAPP and companion 12(b)(6) motion. 

Adelson’s two-pronged attack on the DC anti-SLAPP statute prompted the DC Attorney General to file an amicus curiae brief.  While the majority of the brief is identical to the briefs the office has submitted in the Sherrod, Abbas and Farah cases, it also responds to the new Seventh Amendment argument. 

According to the DC Attorney General, numerous other courts have rejected Seventh Amendment facial challenges to anti-SLAPP statutes, finding that the statutes do not invade the province of the jury because they only require the court to make a threshold finding of whether the suit deserves to proceed further.  The DC Attorney General argues that, while in some future hypothetical case, there might arise a circumstance where an anti-SLAPP motion required the court to decide disputed issues of material fact, the anti-SLAPP motion here did not do so because it was based on legal issues (e.g., the judicial proceedings and fair comment privileges and whether statements were assertions of fact or protected opinion). 

The defendants’ reply brief echoes this point, arguing that “there is no Seventh Amendment concern presented by applying the D.C. Act to any of the three issues currently before the Court” because “[a]ll three issues are routinely adjudicated as a matter of law on pretrial motions.” 

Interestingly, in arguing that the DC anti-SLAPP act does not violate the Seventh Amendment, the DC Attorney General’s brief states:

The Act’s “likely to succeed on the merits” standard is very similar to the “probability” standard used in Cal. Civ. Proc. Code § 425.16(b)(1).  Guidance from the California courts under its state constitutional right to jury trial, while not specifically reaching the Seventh Amendment question, is instructive because the District’s Act was modeled in substantial part on California’s Anti-SLAPP Act.

As readers of this blog know, several parties responding to anti-SLAPP motions have argued that the DC courts should apply California’s “probability” standard of review, while movants have argued that the DC Council’s decision to use the word “likely” in the statute imposes a higher burden. To date, three courts have applied California’s standard in deciding anti-SLAPP motions (the Boley opinion at 5-6, the Payne opinion at 4-5, and the Mann opinion at 10).  The fact that the DC Attorney General states that the two standards are “very similar,” and offers decisions interpreting California’s anti-SLAPP statute in a case involving the DC anti-SLAPP statute, is thus notable.

The remainder of the defendants’ reply brief argues that DC, and not Nevada, law applies to the suit because it has the most significant relationship to the claim; that the DC anti-SLAPP act applies in federal court; and that Adelson has not overcome their motions.    

For his part, Adelson responded to the DC amicus brief by arguing that the California, Minnesota, and Louisiana decisions it cited were inapposite because those jurisdictions do not allow the court to make credibility determinations, while the DC act was silent on this issue.  Adelson also argued that, while it might be possible for the court to resolve the anti-SLAPP motion without making impermissible credibility or factual determinations, “such an outcome is by no means guaranteed.” 

After the briefing on the DC anti-SLAPP statute was completed, the New York federal court ordered the parties to also brief possible application of the Nevada anti-SLAPP statute.  Whether this means that the Court is leaning towards applying Nevada law, or is just covering its bases, is unclear.  Stay tuned.