AMERICAN STUDIES ASSOCIATION, ET AL., APPELLANTS, v. SIMON BRONNER, ET AL., APPELLEES.
No. 19-CV-1222
District of Columbia Court of Appeals
September 30, 2021
Appeal from the Superior Court of the District of Columbia (CAB-1712-19) (Hon. Robert R. Rigsby, Trial Judge) (Argued May 11, 2021)
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
Thomas C. Mugavero for appellants the American Studies Association, Duggan, Marez, Tadiar, Maira, Reddy, and Stephens.
Maria C. Lahood, with whom Astha Sharma Pokharel and Shayana D. Kadidal were on the brief, for appellant Salaita.
Mark Kleiman for appellant Puar.
Jerome M. Marcus, with whom Jennifer Gross, Joel Friedlander, and Eric D. Roiter were on the brief, for appellees.
Radhika Sainath, in support of appellants, for amicus curiae Palestine Legal.
Laura C. Regan, Marco Simons, and Rebecca Chapman, in support of appellants, for amicus curiae Members of the “Protect the Protest” Task Force.
Baruch Weiss and Graham W. White, in support of appellees, for amicus curiae Scholars for Peace in the Middle East.
Don Padou, amicus, in support of neither side.
Before GLICKMAN, EASTERLY, and DEAHL, Associate Judges.
The Anti-SLAPP Act specifies the showing each party must make in the litigation of a special motion to dismiss. The initial burden is on the movant to “make[] a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest.”5 The burden then shifts to the responding party to “demonstrate[] that the claim is likely to succeed on the merits.”6 The disputed issues in this appeal concern the interpretation of the italicized words (“arises from” and “likely to succeed on the merits“) and whether the parties shouldered their respective burdens.
Appellant American Studies Association (“ASA“) is a non-profit research organization. In 2013, it formally adopted a resolution endorsing a boycott of Israeli academic institutions (“2013 Resolution“). Appellees were ASA members at or around that time. They filed the instant lawsuit in Superior Court against the ASA and several of its officers, directors, and other members (who now are appellants along with the ASA). In the interest of clarity, we shall frequently refer to appellants in this opinion as the “ASA defendants” (or just as the “defendants“); and we shall refer to appellees as the “plaintiffs.”
The twelve-count complaint alleged various breaches of fiduciary duty, as well as breaches of contract, tortious interference with contract, corporate waste, and violations of the District‘s Nonprofit Corporation Act.7 The ASA defendants responded to the complaint by filing a motion to dismiss pursuant to Superior Court Civil Rule 12(b)(6) for failure to state claims upon which relief can be granted, and a special anti-SLAPP motion to dismiss the lawsuit. In their 12(b)(6) motion, the defendants argued that plaintiffs’ claims were time-barred, as well as precluded or deficient for other reasons. In their anti-SLAPP motion, the defendants argued that all the plaintiffs’ claims “arise, in one way or another” from the ASA‘s 2013 Resolution, which was an “act in furtherance of the right of advocacy on issues of public interest.”
Plaintiffs contested both motions. In response to the anti-SLAPP motion, they argued that their claims did not “arise from” protected activity, but rather from “specific non-speech acts that violated [d]efendants’ obligations to the ASA and its
The trial court granted the 12(b)(6) motion in part. It ruled that several counts of the complaint were time-barred in whole or part but that the remaining counts were not subject to dismissal for failure to state a claim on which relief could be granted. The court denied the special motion to dismiss. It concluded the defendants had made the necessary prima facie showing that the plaintiffs’ claims arose from acts in furtherance of the right of advocacy, inasmuch as the claims all challenged actions that were related in some way to the 2013 Resolution. Nonetheless, the court also concluded that this fact did not entitle the defendants to relief under the Anti-SLAPP Act because the plaintiffs had “demonstrated that a number of their claims have merit.”
In the present interlocutory appeal, the ASA defendants ask us to reverse the denial of their special motion to dismiss. They do not appeal the partial denial of their 12(b)(6) motion.8
The ASA defendants argue that the trial court should have granted their anti-SLAPP motion to dismiss the counts that fail to state a claim for relief because for that very reason those counts are not “likely to succeed on the merits.” As to the remaining counts of the complaint, the ASA defendants argue that the court erred in failing to assess the likelihood of success of each claim individually and in merely concluding that a number of the claims had merit. In response, the plaintiffs argue that the standard for dismissal under Rule 12(b)(6) is “unrelated” to the anti-SLAPP standard of likelihood of success on the merits, and that all their claims are sufficiently meritorious to meet that standard. In the alternative, plaintiffs argue that the special motion to dismiss was properly denied because their claims do not “arise from acts in furtherance of public advocacy” of the ASA defendants within the meaning of the Anti-SLAPP Act.
We hold that a claim is not “likely to succeed on the merits” within the meaning of the Anti-SLAPP Act if the claim is subject to dismissal under Rule 12(b)(6), and we agree with the defendants that the court was required to determine likelihood of success on a claim-by-claim basis. We further hold that for a claim to “arise from” an act in furtherance of public advocacy, a party‘s statutorily protected activity must itself be the basis for that party‘s asserted liability. In consequence of these holdings, we vacate the denial of the special motion to dismiss and remand the case to the Superior Court for further proceedings consistent with this opinion.
I. Background
A. The Parties
Appellant ASA is a non-profit organization, founded in 1951, that promotes “the study of American culture through the encouragement of research, teaching, [and] publication,” as well as “the strengthening of relations among persons and institutions in this country and abroad devoted to such studies.” The ASA has been incorporated in the District under the Nonprofit Corporation Act since 1971.
In 2013, the ASA had approximately 3,800 members. Regular ASA members
The ASA‘s leadership was made up of five officers: the president, the vice-president, the executive director, the editor of the American Quarterly journal, and the editor of the Encyclopedia of American Studies (“the Encyclopedia“). The president and the vice-president were elected; the other three officers were appointed. All five officers were members of the ASA‘s board of directors, called the National Council, but the appointed officers were non-voting (ex officio) members. An Executive Committee implemented the National Council‘s directives.
The ASA maintained a “Trust and Development Fund . . . to insure [sic] the long-term financial stability of the association.” The ASA‘s constitution provided that the Fund “may also from time to time make grants in support of the projects, activities, or prizes of the association.” Withdrawals from the Fund were conditioned on “the request of at least two-thirds of the voting members of the [National] Council approved by at least four members of the Board of Trustees.” The Board of Trustees consisted of the ASA vice-president and four members appointed by the ASA president “with the advice and consent” of the National Council. The trustees were required to “direct the investment of the Fund‘s resources in a fiscally sound and socially responsible manner.”
Except for appellant Steven Salaita, who did not join the ASA‘s National Council until 2015, the individual appellants all were ASA members in 2013. At times relevant to the instant lawsuit, appellants Curtis Marez, Lisa Duggan, Sunaina Maira, Kehaulani Kauanui, Chandan Reddy, and John Stephens were ASA officers or held positions on the National Council and/or the Executive Committee.9 Appellants Neferti Tadiar and Jasbir Puar served on committees within the ASA.10
Several of the individual appellants also were involved with the United States Association for the Academic and Cultural Boycott of Israel (“USACBI“).11 USACBI was founded in 2009 as part of the larger “Boycott, Divestment, Sanctions” Movement, commonly known by the acronym BDS. It lobbies organizations to boycott Israeli academic and cultural institutions as a form of protest against the state‘s treatment of Palestinians.
Appellee Simon Bronner is a professor of American Studies, an honorary ASA member, and a former editor of the Encyclopedia. In the latter capacity he was also an ex officio member of the National Council. Mr. Bronner‘s editorial contract with the ASA expired on December 31, 2016, and it was not renewed. Mr. Bronner‘s co-plaintiffs, appellees Michael Rockland, Charles Kupfer, and Michael Barton, were ASA members in or around 2013.12
B. The 2013 Resolution
On November 25, 2013, the National Council approved the submission of a proposed resolution to the ASA membership for a vote. The resolution was entitled “Boycott of Israeli Academic Institutions.” Its operative language read:
It is resolved that the American Studies Association (ASA) endorses and will honor the call of Palestinian civil society for the boycott of Israeli academic institutions. It is also resolved that the ASA supports the protected rights of students and scholars everywhere to engage in research and public speaking about Israel-Palestine and in support of the boycott, divestment, and sanctions (BDS) movement.13
That same day, the National Council instructed Mr. Stephens, the ASA‘s executive director, to freeze the membership rolls of the ASA for twenty days. This action prevented members whose dues were in arrears from being reinstated and becoming eligible to vote during the ten-day voting period on the resolution. One such member was Mr. Barton, who was unable to vote on the 2013 Resolution due to the freeze.
The resolution was adopted on December 4, 2013. Out of 3,865 eligible ASA members, 1,252 cast votes, with 827 in favor.
C. Mr. Bronner‘s Editorial Contract
Mr. Bronner took over as the editor of the Encyclopedia in 2011. The ASA paid him a yearly stipend of $8,500 for his services. Mr. Bronner‘s five-year term as editor was set to expire on December 31, 2016. In May 2015, appellant Duggan (then the ASA president) contacted Mr. Bronner to inform him that the Executive Committee was “finalizing a call for proposals” for a new editor of the Encyclopedia, and that this process would “very definitely include[] soliciting [him] for another term.” Mr. Bronner alleges that the Executive Committee never carried out this open call for nominees; instead, he alleges, the Executive Committee privately offered the editor‘s position to Sharon Holland, a member of the National Council.
The ASA announced that Ms. Holland would be the new editor of the Encyclopedia in January 2017, after Mr. Bronner‘s contract expired. The plaintiffs allege that Mr. Bronner was effectively pushed out of the ASA and denied reappointment as the editor of the Encyclopedia because of his opposition to the 2013 Resolution, that no work has been done on the Encyclopedia since his term expired, and that his nominal successor, Ms. Holland, has not been paid the editor‘s stipend.
D. The Federal Lawsuit
Mr. Bronner and his co-plaintiffs initially filed a lawsuit against appellees in the United States District Court for the District of Columbia, charging them with breaches of fiduciary duty, breach of contract, corporate waste, and violations of the Nonprofit Corporation Act. The District Court summarized the plaintiffs’ allegations as follows:
Plaintiffs allege that the Individual Defendants engaged in improper conduct, in contravention of their duties to the ASA and its members, and in violation of the ASA‘s bylaws and D.C. law, to ensure that the [2013] Resolution was formally endorsed by the ASA. They
also allege that the Individual Defendants improperly utilized ASA funds to defend the [2013] Resolution after its passage.
Additionally, Plaintiffs allege . . . that, since the Resolution, several members of the ASA have resigned in protest, depriving the ASA of membership dues[,] . . . that the ASA has experienced reputational harm because of the reaction to the Resolution by the academic community and the general public[,] . . . [and] that the ASA has suffered financial harm because of an alleged decrease in donations and an increase in public-relations and legal spending in response to the public backlash resulting from the Resolution.14
In March 2017, the District Court dismissed the plaintiffs’ derivative claims because they had not complied with the notice and demand requirements of the Nonprofit Corporation Act.15 Thereafter, in February 2019, the District Court dismissed the entire case because plaintiffs could not meet the $75,000 amount in controversy threshold necessary for diversity jurisdiction.16 The D.C. Circuit affirmed this ruling.17
E. The Superior Court Proceedings
On March 15, 2019, appellees filed a 117-page, twelve-count complaint against the ASA and the individual ASA defendants in Superior Court. On behalf of all the plaintiffs, the complaint asserted eight counts alleging breaches of fiduciary duties (counts one and two); ultra vires acts and breach of contract (counts three through six); violations of the Nonprofit Corporation Act (count seven); and corporate waste (count nine). On behalf of Mr. Bronner alone, the complaint also asserted four counts for breach of his editorial contract (count eight), breach of fiduciary duties (count ten), tortious interference with contract (count eleven), and aiding and abetting breach of fiduciary duty (count twelve).18 The complaint sought both monetary damages and injunctive and declaratory relief.
The defendants filed Rule 12(b)(6) and anti-SLAPP motions to dismiss. In their 12(b)(6) motions, they argued that plaintiffs’ claims were: (1) outside the statute of limitations, (2) derivative, and therefore collaterally estopped following the district court decision in Bronner I, (3) precluded by the immunity from suit bestowed by the federal Volunteer Protection Act,19 and/or (4) otherwise insufficient as a matter of law.20 In their anti-SLAPP motion, the defendants contended that “all the [appellees‘] claims . . . arise in one way or another
After a hearing, the court partially granted defendants’ 12(b)(6) motion to dismiss and denied their anti-SLAPP motion to dismiss. Dealing first with the 12(b)(6) motion, the court ruled that counts three through eight and parts of counts two and nine were time-barred. The court rejected the other grounds on which the defendants sought dismissal for failure to state a claim.21 Thus, the non-time-barred claims asserted in six counts of the complaint survived the 12(b)(6) motion.
Turning to the special motion to dismiss, the court found that defendants had made the prima facie showing required to meet their initial burden. It reasoned that “[t]he 2013 resolution and associated acts constitute a communication of views to members of the public” concerning “an issue of public interest . . . related to community well-being,” namely “the ability of foreign scholars to work on relevant issues safely, freely, and without fear of persecution.” But the court also ruled that plaintiffs had met their burden of demonstrating a likelihood of success on the merits:
Plaintiffs have demonstrated that a number of their claims have merit. Plaintiffs have successfully demonstrated that they have evidence suggesting that there may have been a breach of fiduciary duty and that the resolution was improperly passed, costing [sic; causing?] the ASA to lose membership and funds. The court is thus persuaded that these claims do not need to be dismissed pursuant to the Anti-SLAPP Act.
The court did not evaluate the plaintiffs’ likelihood of success on a claim-by-claim basis. It did not further explain why it was “not presently persuaded that the Plaintiffs are so unlikely to win on the merits of their claims that this Complaint should be barred by the Anti-SLAPP Act.”
The ASA defendants immediately appealed the denial of their anti-SLAPP motion to dismiss.
II. Discussion
Appellate review of the denial of a special motion to dismiss under the Anti-SLAPP Act is de novo.22 Appellants, the ASA defendants, challenge the ruling that plaintiffs demonstrated the requisite likelihood of success on the merits. The defendants’ principal argument is that, at a minimum, the Superior Court should have granted the special motion with respect to the time-barred claims because plaintiffs (appellees) could not show those claims were likely to succeed on the merits. Plaintiffs dispute this point and defend the lower court‘s ruling. We shall address appellants’ contentions first. We will then consider plaintiffs’ alternative argument for affirmance: that the Superior Court erred in finding the defendants carried their initial burden of showing that the plaintiffs’ claims arose from an act in furtherance of the right of advocacy.
A. Likelihood of Success on the Merits
1. The Statutory Requirement
“The D.C. Anti-SLAPP Act provides a party defending against a SLAPP
This court confronted the question of how to interpret the Anti-SLAPP Act‘s likelihood of success requirement in Competitive Enterprise Institute v. Mann. Mann involved claims for libel and intentional infliction of emotional distress that were based on articles the defendants had written or published about the plaintiff‘s scientific work on climate change.25 It was conceded that the plaintiff had “made the requisite prima facie showing that the [Anti-SLAPP] Act applie[d].”26 At issue was whether the plaintiff‘s claims were likely to succeed on the merits.27
The Mann court acknowledged that the Anti-SLAPP Act‘s text was ambiguous in at least one respect: “Although we can be confident that ‘on the merits’ refers to success on the substance of the claim,” the court said, “the meaning of the requirement that the opponent ‘demonstrate[] that the claim is likely to succeed’ is more elusive.”28 Without being able to rely on “a statutory . . . [or] clear dictionary definition,”29 the court looked to legislative history and the goals of the special motion to dismiss:
The special motion to dismiss is a mechanism by which a SLAPP defendant can ‘expeditiously and economically dispense of [sic] litigation’ to alleviate the burdens and cost of defending against a suit that is filed, not to succeed, but to ‘prevent or punish’ the defendant‘s speech or advocacy. . . . In short, . . . [it] authorizes final disposition of a claim in a truncated proceeding, usually without the benefit of discovery, to avoid the toll that meritless
litigation imposes on a defendant who has made a prima facie showing that the claim arises from advocacy on issues of public interest.30
The Mann court undertook to construe the phrase “likely to succeed on the merits” in light of the Act‘s goals, but also “in a manner that does not supplant the role of the fact-finder” and “respects the right to a jury trial.”31 Adopting a standard akin to that used in evaluating summary judgment motions, the court concluded that, when evaluating the likelihood of success on the merits, the “precise question the [trial] court must ask . . . is whether a jury properly instructed on the law, including any applicable heightened fault and proof requirements, could reasonably find for the claimant on the evidence presented.”32 Dismissal is appropriate, the court said, “only if the court can conclude that the claimant could not prevail as a matter of law, that is, after allowing for the weighing of evidence and permissible inferences by
the evidence are . . . [those] that apply to the underlying claim and related defenses and privileges.”34
Mann touched on the potential overlap between the “likely to succeed on the merits” standard of the Anti-SLAPP Act and the grounds for dismissal under Rule 12(b)(6). The court observed that “unless something more than argument based on allegations in the complaint is required, the special motion to dismiss would be redundant in light of the general availability, in all civil proceedings . . . of motions to dismiss under Rule 12(b)(6).”35 The requisite “something more” is a proffer of admissible, credible evidence. A plaintiff must make more of a showing to defeat an anti-SLAPP motion than is ordinarily required to defeat a 12(b)(6) motion; by itself, the facial validity of a claim is not normally sufficient to demonstrate the likelihood of success required by the Anti-SLAPP Act. That demonstration requires the plaintiff to make, and the court to evaluate, a proffer of evidence supporting the well-pled claim and overcoming any defenses asserted against it. A plaintiff unable to make a satisfactory evidentiary proffer will face dismissal and a potential award of attorney‘s fees and costs to the defendant.36 Thus, the special motion to dismiss is not “redundant” of Rule 12(b)(6), because the special motion to dismiss can be granted even if the 12(b)(6) motion is denied.
Mann did not explicitly address the opposite question that is before us now — whether a plaintiff‘s failure to state a claim upon which relief may be granted is not only a ground for granting a 12(b)(6) motion but is also a sufficient ground for granting an anti-SLAPP motion as well. The implication of its redundancy analysis, however, is that if the plaintiff is unable even to state a claim upon which relief can be granted, it follows automatically that the plaintiff is unable to demonstrate the claim is “likely to succeed on the merits” as required by
2. Effect of Failure to State a Claim on Which Relief May Be Granted
Appellees resist that conclusion. They argue that the Rule 12(b)(6) standard and the
Appellees’ argument, however, is unpersuasive. The anti-SLAPP special motion to dismiss is essentially an expedited summary judgment motion, albeit with
it would hardly be in keeping with the objective of the Anti-SLAPP Act — “to alleviate the burdens and costs of defending against a suit that is filed, not to succeed, but to prevent or punish the defendant‘s speech or advocacy”44 — if trial courts were required to ignore any fatal legal deficiencies of the plaintiff‘s claims and keep them alive merely so that they could be dismissed later under Rule 12(b)(6). We therefore hold that where the court grants a 12(b)(6) motion because no relief can be granted on a claim as a matter of law, the plaintiff cannot show a likelihood of success on the merits of that claim for the purposes of the anti-SLAPP motion.
Courts in other jurisdictions have reached the same conclusion in interpreting similar anti-SLAPP laws. In Phoenix Trading Inc. v. Loops LLC, the Ninth Circuit reviewed the denial of a special
3. Individual Examination of Claims Is Required
In this case, the Superior Court determined that six of the plaintiffs’ twelve claims were fully time-barred and that two others were partially time-barred. It follows from what we have said that, if these claims arose from acts in furtherance of the right of advocacy on issues of public interest, the court should have granted the ASA defendants’ special motion to dismiss them.
The plaintiffs argue, however, that notwithstanding the foregoing deficiencies in the Superior Court‘s denial of the anti-SLAPP motion, we should uphold that denial because their claims do not arise from acts in furtherance of the right of advocacy on an issue of public interest. We turn now to this alternative ground for affirmance.
B. Claims “Arising From” an Act in Furtherance of the Right of Advocacy
1. The Required Prima Facie Showing
A party filing a special motion to dismiss must “make[] a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest.”55 The Anti-SLAPP Act provides that an “act in furtherance of the right of advocacy on issues of public interest” means:
(A) Any written or oral statement made:
- In connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; or
- In a place open to the public or a public forum in connection with an issue of public interest; or
(B) Any other expression or expressive conduct that involves petitioning the government or communicating views to
members of the public in connection with an issue of public interest.56
Thus, the movant must make a prima facie showing that the claim at issue “arises from” some form of speech — a “written or oral statement” or other “expression or expressive conduct” — of the specified character.57 This accords with “the Anti-SLAPP Act‘s purpose to deter meritless claims filed to harass the defendant for exercising First Amendment rights.”58
The Anti-SLAPP Act does not define the term “arises from,” and we have not had occasion to construe its meaning before now. That is not surprising. Most anti-SLAPP motions seek dismissal of actions for defamation and other torts arising out of allegedly harmful speech.59 In those actions, a direct link between the claims and the speech is apparent, and the threshold dispute is over whether the Anti-SLAPP Act protects the defendant‘s statements, not whether the plaintiff‘s claims arose from those statements in the first place.60
This case is different. Plaintiffs did not assert claims for defamation or, they contend,
2. The Meaning of “Arises From”
We agree with plaintiffs that the Superior Court did not adequately consider whether each of their claims “arises from” an act in furtherance of the right of advocacy. We conclude it was not enough to find that the 2013 Resolution constituted such an act (as the term is defined) and was related in some way to the non-speech conduct targeted in the plaintiffs’ causes of action.62 Bearing in mind the statutory context in which the words “arise from” are used, we conclude we must interpret them less expansively.
“The first step in construing a statute is to read the language of the statute and construe its words according to their ordinary sense and plain meaning.”63 But “[a]t the same time, we do not read statutory words in isolation; the language of surrounding and related paragraphs may be instrumental to understanding them.”64 “[O]ur focus cannot be too narrow, for the plainness or ambiguity of statutory language is determined not only by reference to the language itself, but also by considering the specific context in which that language is used, and the broader context of the statute as a whole.”65 Where we find ambiguity, we may look for guidance to the statute‘s purpose and legislative history “to ensure that our interpretation is consistent with legislative intent.”66
“In cases where we have interpreted the phrase ‘arise from’ in statutes, we have said that ’ [a]rise from’ may well connote a causal relation less direct and
Under the Anti-SLAPP Act, therefore, a party filing a special motion to dismiss a claim must show the claim has a substantial connection or nexus to a protected act.
This reading is buttressed by the California Supreme Court‘s interpretation of that state‘s similar anti-SLAPP statute. Under that law, a party may file a special motion to strike any cause of action “arising from” a protected act in furtherance of the right of petition or free speech in connection with a public issue.71 As we undertake to do with our Act, the California Supreme Court construed this statutory language in accordance with “the Legislature‘s intent, as exhibited by the plain meaning of the actual words of the law.”72
“[T]he ‘arising from’ requirement is not always easily met,” the California Supreme Court observed.73 “[T]he mere fact an action was filed after protected activity took place does not mean it arose from that activity.”74 “Rather, the act underlying the plaintiff‘s cause or the act which forms the basis for the plaintiff‘s cause of action must itself have been an act in furtherance of the right of petition or
In this case, we understand the Superior Court to have accepted a significantly more expansive interpretation of the phrase “arises from.” In ruling on the special motion, the judge was “persuaded that the [plaintiffs‘] claims . . . fall under the [Anti-Trust Act] because the 2013 Resolution was “related to community well-being, and thus an issue of public interest.” But that loose interpretation of “arises from” facilitates special motions to dismiss claims based on non-speech activities that are merely tangentially related to protected speech, extending the Anti-SLAPP Act to cover activities outside the statutory definition of protected acts; it thereby burdens claims based on conduct the Act was not meant to shield.78 This upsets the delicate balance that the special motion to dismiss was intended to strike. As we explained in Mann, “the special motion to dismiss in the Anti-SLAPP Act must be interpreted as a tool calibrated to take due account of the constitutional interests of [both parties] . . . ; it is not a sledgehammer meant to get rid of any claim against a defendant.”79
The legislative history of the Anti-SLAPP Act is also informative. As originally introduced in 2010, the statute would have permitted special motions to dismiss “any claim arising from an act in furtherance of the right of free speech,” which was defined to include not only speech but also “[a]ny other conduct in furtherance of the constitutional right to petition the government or the constitutional right of free expression in connection with an issue of public interest.”80 This definition reasonably could have been construed to cover not only speech, but at least some related non-speech conduct as well81 (although that does not, in fact, appear from the Committee Report on the bill to have been intended).82 But at the suggestion of the
Appellants propose that a claim should nonetheless be deemed to arise from protected activity if the plaintiff‘s subjective motivation for asserting the claim was a desire to chill or punish speech. But the statutory text does not call for inquiry into the plaintiff‘s motives; it focuses on the claim, not the claimant. Nor does anything in the legislative history suggest the Council envisioned an examination of the plaintiff‘s motives in connection with special motions to dismiss. This contrasts with some state anti-SLAPP laws that do call for examination of the plaintiff‘s subjective motivation.85
There is no doubt that the Council was concerned with “prevent[ing] the attempted muzzling of opposing points of view” via SLAPPs,86 but it did not elect to do so by authorizing the trial court to explore the plaintiff‘s underlying motives in asserting a claim. Instead, the Anti-SLAPP Act instructs courts to determine whether the claim at issue “arises from” a protected act. We think no sensible reading of that language could lead to a conclusion that the Council intended courts to gauge a plaintiff‘s subjective reasons for filing their claims.87
3. The Claims at Issue
In this case, the Superior Court did not have the benefit of our holding, and it did not examine plaintiffs’ dozen claims according to the proper standard. On their face, however, there is serious question whether a number of those claims are based on the speech — the 2013 Resolution — that constituted the ASA defendants’ assertedly protected activity.
Counts one and two of the complaint touch on facts that are related to the 2013 Resolution, but the wrongful acts that they identify predate its adoption and promulgation. Count one alleges that the individual defendants breached their fiduciary duties to the ASA and its members during the preliminary discussions on the 2013 Resolution and when seeking appointment to the National Council by misrepresenting and/or omitting material facts “regarding (1) their personal political agenda . . . to advance the purposes of USACBI by causing the [ASA] to adopt and implement the boycott, and (2) the expected costs of the Academic Boycott.” Count two further alleges that the individual defendants violated their “duties of care, good faith, loyalty, and candor” by, in part, “manipulating the nomination and voting process, miscounting votes . . . [and] withholding voting rights from certain members” in contravention of the association‘s bylaws. We think it unclear whether either of these counts alleges a cause of action based on protected activity.
The same can be said for several of the other counts. Count three contends that the individual appellants violated the ASA‘s constitution by failing to nominate candidates who were “representative of the [ideological] diversity of the association‘s membership” for various leadership positions prior to 2013. Count four alleges that the ASA‘s constitution prohibited the freezing of the membership rolls that prevented plaintiff Barton from voting on the 2013 Resolution.88 Counts six and seven also challenge the process by which the 2013 Resolution was adopted. They allege that: (1) the Resolution did not obtain the two-thirds majority required by the ASA‘s bylaws, and (2) the vote was held in violation of quorum requirements. Finally, although counts ten through twelve concern conduct subsequent to the promulgation of the 2013 Resolution, they do not appear to be based on the Resolution itself. Instead, these counts take issue with the ASA‘s purportedly unjustified non-renewal of Mr. Bronner‘s editorial contract and its alleged mismanagement of the Encyclopedia.
On the other hand, at least two counts do appear to be based on the 2013 Resolution. Count nine alleges that the individual appellants’ use of funds to “declare enacted” the 2013 Resolution amounted to corporate waste, while count five casts the Resolution as an improper attempt to influence Israeli and American legislation.89
III. Conclusion
To sum up, a special motion to dismiss claims under the Anti-SLAPP Act contemplates a two-step analysis with respect to each challenged claim. At the first step, the movant must make a prima facie showing that each claim at issue “arises from” an act in furtherance of the right of advocacy on an issue of public interest. To determine whether the movant has made that showing, the court must examine whether each claim is based on such protected activity. If the court concludes the movant has made the necessary showing, it must grant the special motion unless the responding party demonstrates the claim is “likely to succeed on the merits,” in which case the motion must be denied. A determination by the court pursuant to Rule 12(b)(6) that the responding party has failed to state a claim on which relief can be granted suffices to establish that the claim is not “likely to succeed on the merits.” The court should rule on the special motion to dismiss with respect to each claim, even if it grants a 12(b)(6) motion to dismiss that claim.
Because the Superior Court did not carry out the two-step analysis in the manner we hold the Anti-SLAPP Act requires, we vacate the denial of the special motion to dismiss and remand for further proceedings consistent with this opinion.
So ordered.
Notes
Mann, 150 A.3d at 1238 n.32.[T]he special motion to dismiss is different from summary judgment in that it imposes the burden on plaintiffs and requires the court to consider the legal sufficiency of the evidence presented before discovery is completed. As concerns the standard to be employed by the court in deciding whether to grant the motion, however, the question is substantively the same: whether the evidence suffices to permit a jury to find for the plaintiff.