292 A.3d 244
D.C.2023Background
- In 2018 Russian businessmen German Khan, Mikhail Fridman, and Petr Aven sued Christopher Steele and Orbis for defamation based on allegations in the Steele Dossier about their ties to Vladimir Putin.
- Steele/Orbis filed a special motion to dismiss under D.C. Anti‑SLAPP Act §16‑5502; the trial court found the statements were acts in furtherance of public‑interest advocacy and that plaintiffs failed to proffer clear-and-convincing evidence of actual malice.
- This court affirmed the dismissal on appeal, holding plaintiffs needed to show actual malice by clear and convincing evidence to survive the Anti‑SLAPP motion.
- Steele/Orbis then sought attorney fees and costs under §16‑5504(a); the trial court awarded $440,538.58 and later $29,807.50 in “fees on fees.”
- Plaintiffs opposed the awards, arguing (1) special circumstances (good‑faith, reputational vindication) made fees unjust; (2) §16‑5504(a) is facially and as‑applied unconstitutional under the Petition Clause; and (3) the Anti‑SLAPP procedures impermissibly modified the Federal Rules in violation of D.C. Code §11‑946.
- The D.C. Court of Appeals affirmed both the initial fee award and the supplemental fees‑on‑fees, rejecting each of plaintiffs’ challenges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to fees under §16‑5504(a) | Fridman et al.: their suit was brought in good faith to clear reputations, not a classic meritless SLAPP; therefore special circumstances make fees unjust | Steele/Orbis: successful movant presumptively entitled to fees unless special circumstances make award unjust; plaintiffs lacked substantial evidence of actual malice | Court: affirmed fee award; Doe v. Burke presumption applies and plaintiffs failed to show special circumstances (no substantial evidence of actual malice) |
| Constitutionality of §16‑5504(a) (facial and as‑applied) | Plaintiffs: fee‑shifting unduly burdens Petition Clause rights unless suit was frivolous or in bad faith | Defendants: statute targets objectively baseless suits and furthers important governmental interests in deterring SLAPPs; leaves judicial discretion | Court: §16‑5504(a) is constitutional on its face and as applied; it targets suits lacking likelihood of success and does not unduly burden petitioning rights |
| D.C. Code §11‑946 / Federal Rules conflict | Plaintiffs: Anti‑SLAPP special motion and fee scheme modify or conflict with Federal Rules and Superior Court must follow Fed. R. Civ. P. absent approved modification | Defendants: Anti‑SLAPP provides substantive remedy (statutory authorization for fees) but does not alter Rule 54 procedure for fee motions; special motion is procedural statute within state authority | Court: plaintiffs forfeited timely challenge; §16‑5504(a) is a substantive fee authorization and does not impermissibly modify the Federal Rules of Civil Procedure |
| Award of "fees on fees" (costs to obtain fee award) | Plaintiffs: judge improperly presumed entitlement to fees on fees and penalized them for raising novel legal arguments | Defendants: prevailing party may recover reasonable fees incurred to obtain initial fee award; prior determination that fees were warranted supports supplemental award | Court: affirmed; fees‑on‑fees are recoverable and plaintiffs did not overcome the presumption; amount was reasonable |
Key Cases Cited
- Doe v. Burke, 133 A.3d 569 (D.C. 2016) (Anti‑SLAPP prevailing movant presumptively entitled to fees unless special circumstances make award unjust)
- Fridman v. Orbis Bus. Intel. Ltd., 229 A.3d 494 (D.C. 2020) (affirming dismissal for failure to show actual malice by clear and convincing evidence)
- Competitive Enter. Inst. v. Mann, 150 A.3d 1213 (D.C. 2016) (describing Anti‑SLAPP special motion standard and public‑interest protections)
- Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (U.S. 1978) (fee‑shifting standards under Title VII distinguish frivolous/bad‑faith suits)
- Borough of Duryea v. Guarnieri, 564 U.S. 379 (U.S. 2011) (Petition Clause protects access to courts but not groundless litigation)
- Gen. Fed’n of Women’s Clubs v. Iron Gate Inn, Inc., 537 A.2d 1123 (D.C. 1988) (recognizes recovery of fees incurred in obtaining an earlier fee award)
- Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240 (U.S. 1975) (legislative bodies have discretion to define fee‑award schemes)