Last June, I wrote about the non-party subpoena served on the Competitive Enterprise Institute, and the anti-SLAPP motion to dismiss the CEI filed in response. In that post, I mentioned an earlier case where subpoenas were served on two non-parties in the District of Columbia; they responded by filing anti-SLAPP motions to dismiss; the Superior Court denied those motions; and the movants appealed the denial to the Court of Appeals, which stayed the case until resolution of the then-pending Mann appeal. The Court of Appeals has now disposed of that appeal.

First, a quick summary. In June 2014, two DC-based non-parties (Glenn Simpson and Obama for America) received domesticated subpoenas, seeking production of records and a deposition in aid of a defamation suit then pending in Idaho. The subpoena recipients filed anti-SLAPP motions, seeking relief under the statute’s motion to dismiss provision. In October 2014, the Superior Court held that the domesticated subpoenas did not qualify as a “claim” under the statute. The court held, however, that the plaintiffs’ motion to compel compliance with the subpoenas qualified as a “claim.” The Simpson court nevertheless denied the anti-SLAPP motions, concluding that the subpoenaing party was likely to prevail on the merits.

Both parties appealed the denial of their anti-SLAPP motions to the Court of Appeals. Vandersloot, the subpoenaing party, moved to dismiss the appeals, arguing that there was no right to appeal from the denial of an anti-SLAPP motion to dismiss. The Court of Appeals held Vandersloot’s motion in abeyance pending resolution of the Mann appeal.

In December 2016, the Court of Appeals issued its Mann decision, in which it held that there was an immediate right to appeal from the denial of an anti-SLAPP motion to dismiss. But, in the intervening two years, the underlying Idaho case in which Vandersloot had sought discovery from the DC non-parties had been resolved, with that court dismissing Vandersloot’s claims.

As a consequence, in May 2017, the Court of Appeals issued an Order in which it noted that “the litigation that prompted the commencement of the underlying action in the Superior Court has been resolved,” and that, as a result, “the appeal is hereby dismissed as moot.”

Simpson filed a motion for reconsideration, arguing that termination of the underlying case did not moot his anti-SLAPP motion to dismiss because, if he persuaded the Court of Appeals that the Superior Court erred in denying his motion, he was entitled to an award of fees (under Burke II). Vandersloot’s opposition brief argued that, because Simpson had lost in the Superior Court, and the dispute had become moot during the pendency of the appeal, “Simpson’s hope for attorney’s fees if the Superior Court’s decision is ultimately reversed does not alone create a live controversy for this moot appeal.” Simpson’s reply brief did not move the Court; it denied his motion for reconsideration in late June, bringing an end to the saga.