Last week, another DC Superior Court judge granted an anti-SLAPP motion.  This motion was filed by the District of Columbia in response to a defamation/related torts lawsuit brought by a former employee: Eric Payne.  (For prior discussions on this suit, see this post discussing the DC opening brief; this post discussing Payne’s opposition brief; and this post discussing DC’s reply brief).  You can also find news stories about the lawsuit here and here, and an editorial that is critical of DC’s anti-SLAPP motion here). 

This is the second anti-SLAPP motion that has been granted by a DC Superior Court judge, joining Lehan v. Fox.  An anti-SLAPP motion was denied by another DC Superior Court judge in Newmyer v. Huntington and anti-SLAPP motions are pending in two other DC Superior Court cases: Mann v. National Review and Campbell v. CGI Group.

The Payne court’s opinion first finds that the suit arose from protected activity because the challenged statements – about the alleged reasons why Mr. Payne was terminated by the District of Columbia – were made in connection with a pending lawsuit and on an issue of public interest (“actions by a government agency, a government official and a government employee’s conduct”).  Accordingly, it turns to whether Mr. Payne could show that he was nevertheless going to prevail on the merits. 

Interestingly, the Superior Court applied California’s “probability of success” standard of review because it found “no published decisions in this jurisdiction that have assessed the applicable standard of review.”   As readers of this blog are aware, the parties in several of the prior cases involving the DC anti-SLAPP statute have sparred over the standard of review.  Several of the parties opposing anti-SLAPP motions have argued that California’s probability standard applies:

  • 3M’s argument at pages 15-16: “[g]iven the essential similarity of the ‘probability’ standards used in the California and Louisiana Acts to the D.C. Act’s ‘likely to succeed’ standard, the jurisprudence of those states is instructive,” and
  • Mann’s argument at page 38: “[t]he sole difference between the California statute and the D.C. statute is that California uses the term ‘probability the plaintiff will succeed on the merits,’ whereas D.C. uses the term ‘likely to succeed on the merits.’  This is a distinction without a difference.” 

On the other hand, anti-SLAPP movants have emphasized that DC’s selection of the term “likely” to succeed imposes a different, and heavy, burden:

  • City Paper’s argument at page 23: “the D.C. Council chose to impose on plaintiffs like Mr. Snyder a burden unique among anti-SLAPP statutes.  To defendants’ knowledge, no other state employs in its statute a standard requiring a plaintiff to demonstrate that he or she is ‘likely to succeed on the merits,’’ and
  • Competitive Enterprise Institute’s argument at pages 17-18: “[while] the Act was modeled on California’s anti-SLAPP statute, instead of requiring (as under California law) a ‘probability the plaintiff will succeed on the merits,’ it requires the plaintiff to show that he is ‘likely to succeed on the merits.’  Mann’s assertion that ‘this is a distinction without a difference’ denies all credit to the D.C. Council’s choice to depart from California’s approach in this one, crucial respect.”

Even under the less demanding “probability” standard of review, the court finds that Mr. Payne will not prevail on the merits. It holds that the challenged statements were privileged as a matter of law and that the privilege was not overcome or lost.  It also finds that the alleged statements “do not rise to the level of outrageousness to state a cognizable claim for [intentional infliction of emotional distress] and that the claim for “constitutional defamation” failed as a matter of law.