259 A.3d 728
D.C.2021Background
- In 2013 the American Studies Association (ASA) adopted a resolution endorsing an academic boycott of Israeli institutions; plaintiffs were ASA members who later sued the ASA and several officers/directors alleging breaches of fiduciary duty, contract violations, corporate waste, tortious interference, and Nonprofit Corporation Act violations.
- Defendants filed Rule 12(b)(6) motions and a special motion to dismiss under the D.C. Anti‑SLAPP Act; the Superior Court granted the 12(b)(6) motion in part (time‑barred some counts) but denied the anti‑SLAPP motion.
- The Superior Court found the ASA’s Resolution constituted protected advocacy and that defendants made the required prima facie showing, but concluded plaintiffs had shown that “a number of their claims have merit” and denied dismissal without a claim‑by‑claim analysis.
- On interlocutory appeal, defendants argued: (1) claims dismissed under Rule 12(b)(6) cannot be “likely to succeed on the merits” under the Anti‑SLAPP Act; and (2) the court must assess likelihood of success for each claim individually. Plaintiffs alternatively argued their claims do not “arise from” protected advocacy.
- The D.C. Court of Appeals held that (a) a Rule 12(b)(6) dismissal establishes a claim is not “likely to succeed on the merits” for Anti‑SLAPP purposes; (b) the Anti‑SLAPP analysis must be done claim‑by‑claim; and (c) a claim “arises from” protected advocacy only if the protected speech/expressive act itself is the basis (an element) of the asserted liability. The court vacated the denial and remanded for claim‑specific determinations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a Rule 12(b)(6) dismissal precludes a plaintiff from showing a claim is "likely to succeed on the merits" under the Anti‑SLAPP Act | Rule 12(b)(6) legal‑sufficiency is distinct from the Anti‑SLAPP evidentiary showing; Anti‑SLAPP focuses on proffered evidence | If a claim fails as a matter of law it cannot be likely to succeed; 12(b)(6) deficiencies therefore satisfy Anti‑SLAPP failure | A 12(b)(6) dismissal means the claim cannot be "likely to succeed on the merits" for Anti‑SLAPP purposes. |
| Whether the Anti‑SLAPP "likely to succeed" inquiry may be done globally or must be claim‑by‑claim | Court's finding that "a number" of claims have merit was sufficient | The statute requires assessing each challenged claim individually | The court must evaluate likelihood of success on each claim separately. |
| Meaning of "arises from" an act in furtherance of advocacy (threshold prima facie showing) | Plaintiffs: their claims arise from non‑speech corporate wrongs; Anti‑SLAPP does not apply | Defendants: plaintiffs' claims stem from and were triggered by the Resolution and related advocacy | "Arises from" requires that the defendant's protected speech/expressive act be the basis (an element) of the asserted cause of action — not merely tangentially related. |
| Relevance of plaintiff's subjective motive for filing suit (to show action was a SLAPP) | Plaintiff motive shows the suit was not aimed at chilling speech, so Anti‑SLAPP should not apply | Defendants sought dismissal based on the challenged acts regardless of motive | Plaintiff's subjective motive is not part of the statutory threshold; Anti‑SLAPP focuses on whether the claim is based on protected activity, not plaintiff intent. |
Key Cases Cited
- Competitive Enter. Inst. v. Mann, 150 A.3d 1213 (D.C. 2016) (construed "likely to succeed on the merits" as whether a properly instructed jury could reasonably find for the claimant and required an evidentiary proffer beyond pleadings)
- Saudi Am. Pub. Rels. Affs. Comm. v. Inst. for Gulf Affs., 242 A.3d 602 (D.C. 2020) (applies Mann principles and remands for trial court to evaluate Anti‑SLAPP issues in the first instance)
- Phoenix Trading Inc. v. Loops LLC, 732 F.3d 936 (9th Cir. 2013) (upheld dismissal under state anti‑SLAPP where claims were time‑barred; statute of limitations relevant to Anti‑SLAPP second‑stage inquiry)
- Hilton v. Hallmark Cards, 599 F.3d 894 (9th Cir. 2010) (described Anti‑SLAPP second stage as assessing legal sufficiency and prima facie factual support analogous to summary judgment)
- Equilon Enters. v. Consumer Cause, Inc., 52 P.3d 685 (Cal. 2002) (Cal. Supreme Court: "arising from" requires the defendant conduct that forms the basis of the plaintiff's cause of action to be protected activity)
- Close It! Title Servs., Inc. v. Nadel, 248 A.3d 132 (D.C. 2021) (denial of an Anti‑SLAPP special motion reviewed de novo)