When I last wrote about the Jacobson v. Clack case, Jacobson had voluntarily dismissed the suit (two days after a hearing on the defendants’ anti-SLAPP motion, but before the Superior Court ruled on the motion). I wondered if the defendants would move to recover their fees. Well, wonder no more.

Both the National Academy of Sciences and Dr. Clack have moved to recover their fees. The NAS brief argues that, because Jacobson dismissed the suit, the defendants have prevailed, entitling them to recover their fees:

The Academy has effectively prevailed on its special motion to dismiss, since the motion caused plaintiff to abandon his lawsuit almost immediately following the Court’s February 20 Anti-SLAPP hearing. Moreover, as demonstrated in the briefing and at the hearing on the defendants’ special motions to dismiss, Plaintiff did not satisfy his burden of proving that his claims were likely to succeed on the merits. The Academy is therefore entitled to a presumption that it should be awarded its fees and costs. Plaintiff did not escape his obligation to reimburse the Academy for those fees and costs when he filed his notice of voluntary dismissal without prejudice.

The NAS brief explains that, while there is no DC authority on point, courts in California and Massachusetts have held that a plaintiff “cannot escape liability” by voluntarily dismissing a complaint after a defendant has filed an anti-SLAPP motion, but before the court has an opportunity to rule on the motion. (Dr. Clack filed a separate motion that incorporated the NAS’ arguments).

Jacobson’s opposition brief argues that he exercised his right to voluntarily dismiss his suit under Superior Court Rule 41(a)(1). Jacobson argues that, because his dismissal was filed before the court ruled on the pending motions, there was no prevailing party because, according to Jacobson, the defendants had not been awarded any relief by the court.

The NAS reply brief argues that the decisions relied upon by Jacobson all turn on the fact that, in order to award fees, there needed to be a “prevailing party,” which is a term of art that significantly and materially differs from the language in the DC anti-SLAPP statute. According to the NAS, the language used in the DC anti-SLAPP statute parallels language in the DC FOIA statute, which the DC Court of Appeals has interpreted to require only a “causal nexus” between the motion and the result. The NAS argues that the nexus is found here because the defendants’ anti-SLAPP special motions to dismiss stopped Jacobson’s discovery efforts, required him to attempt to demonstrate that he was likely to prevail on the merits and, ultimately, led him to dismiss his suit.

I thought it might be interesting to see how California courts have handled similar situations under the California anti-SLAPP statute. My quick research shows that California courts have consistently held a moving party can still obtain its fees, even when a plaintiff dismisses its suit before a ruling on the merits of the anti-SLAPP motion, although they have differed on what a court is required to consider in such a circumstance.

Almost 20 years ago, the court in Coltrain v. Shewaiter addressed this issue. The plaintiff there dismissed its suit after the defendants filed anti-SLAPP motions, but before those motions were ruled on by the trial court. The trial court nevertheless awarded the defendants their fees. The appellate court held that, despite the voluntary dismissal, the trial court retained the ability to award fees:

We conclude that where the plaintiff voluntarily dismisses an alleged SLAPP suit while a special motion to strike is pending, the trial court has discretion to determine whether the defendant is the prevailing party for purposes of attorney’s fees under Code of Civil Procedure section 425.16, subdivision (c). In making that determination, the critical issue is which party realized its objectives in the litigation. Since the defendant’s goal is to make the plaintiff go away with its tail between its legs, ordinarily the prevailing party will be the defendant. The plaintiff, however, may try to show it actually dismissed because it had substantially achieved its goals through a settlement or other means, because the defendant was insolvent, or for other reasons unrelated to the probability of success on the merits.

The next year, the court in Liu v. Moore also held that a trial court retained jurisdiction to award fees, even after a plaintiff voluntarily dismissed his suit before the court ruled on the anti-SLAPP motion. The Liu court held, however, that, before awarding any fees or costs, the trial court needed to determine whether defendant would have prevailed on its anti-SLAPP motion. That reasoning was recently reaffirmed by the court in Touregman v. Nelson & Kennard.

It thus appears that there is a difference of opinion in California on whether a court must, effectively, decide the anti-SLAPP motion before awarding fees/costs (as the Liu and Touregman courts held) or must simply determine if the moving party realized its objectives (as the Coltrain court held). Irrespective of what the trial court needs to decide, however, the California courts appear to be in agreement that a trial court can still award fees and costs, even where a plaintiff has exercised its right to voluntarily dismiss his suit before a decision on the merits.

To me, it seems strange that, where a plaintiff has voluntarily dismissed its suit, the trial court still needs to decide the merits of the anti-SLAPP motion, so that it can decide whether an award of fees is appropriate. The Coltrain court’s approach seems much more reasonable to me: the presumption is that the defendant has prevailed (because the plaintiff has dismissed his suit), but the plaintiff can try to persuade the trial court that the dismissal was because he had substantially achieved his goals or for some other legitimate reason.

Here, Jacobson publicly claimed that he dismissed the suit because “[i]t became clear” “that it is possible there could be no end to this case for years, and both the time and cost would be enormous. Even if the motions for dismissal were defeated, the other side would appeal, and that alone would take 6-12 months if not more. Even if I won the appeal, that would only be the beginning. It would mean time-consuming discovery and depositions, followed by a trial. The result of the trial would likely be appealed, etc., etc.”

Jacobson also maintained that, while he had been unsuccessful “in having the scientific record in the C17 article corrected,” he had “brought the false claims to light so that at least some people reading [the Clack article] will be aware of the factually inaccurate statements.”

For me, these arguments are insufficient to overcome the presumption that the defendants prevailed, and are entitled to fees. Jacobson should have been aware, before filing the suit, that it might be time-consuming and expensive. Accepting this argument as a basis for denying fees would provide too large a loophole that plaintiffs could exploit. Similarly, the argument that the suit was successful, because it allowed Jacobson to air his side of the dispute, is an insufficient basis to avoid an award of fees, it seems to me.

It will be interesting to see what the Superior Court does. As always, stay tuned.