(Docs. 8, 11, 25)
On August 31, 2017, Plaintiff Soojung Jang, Ph.D., a citizen and resident of Seoul, Republic of Korea, commenced this libel and defamation action against the Trustees of St. Johnsbury Academy (the Academy) and Kingdom Development Company, Inc. (KDC). (Doc. 1.) The Academy and KDC were part of a successful effort to establish the St. Johnsbury Academy-Jeju on Jeju Island in the Republic of Korea, which opened in late October 2017. (Doc. 8 at 7.) On July 16, 2016, prior to the opening of the school, an attorney for the Academy and KDC sent a letter to the Governor of the Jeju Provincial Office of Education detailing Dr. Jang's purported efforts in the Republic of Korea and the United States to undermine the establishment of the school. In Dr. Jang's Complaint, she claims that the letter's contents are libelous and defamatory and that she suffered actual, special, and punitive damages as a result of the letter's publication. (Doc. 1 at 4-5, ¶¶ 30, 34.)
Presently before the Court is the Academy and KDC's Joint Motion to Strike the Complaint pursuant to Vermont's anti-SLAPP statute, Vt. Stat. Ann. Tit. 12, § 1041 (2006), (Doc. 8), and their Joint Motion to Dismiss the Complaint for Failure to State a Claim pursuant to Fed. R. Civ. P. 12(b)(6). (Doc. 11.) Dr. Jang responded in opposition to both motions, (Docs. 12, 15), and the Academy and KDC filed two replies. (Docs. 20, 21.) A hearing on the motions was held on February 20, 2018, and the parties subsequently filed supplemental memoranda. (Docs. 26, 27, 28, 30, 31, 32.)
Concluding that the evidence submitted by the Academy and KDC does not demonstrate that the letter involved a public issue under the Vermont Supreme Court's narrow interpretation of
This Court has previously treated a motion to strike as analogous to a summary judgment motion under Federal Rule of Civil Procedure 65. See Bible & Gospel Trust v. Twinam , No. 1:07-cv-17,
I. Background and Parties
This case involves the establishment of a school on Jeju Island, a province in the Republic of Korea (South Korea). Government-sponsored development on Jeju Island is controlled by the Jeju Free International City Development Center (the City Development Center), a corporation owned by the South Korean Ministry of Land, Transport, and Maritime Affairs. (Doc. 8-2 at 5, § a; see also Doc. 1 at 2, ¶ 8.) One of the City Development Center's projects is the Jeju Global Education City, a plan to create a "vibrant global education city" by establishing several international schools in a specific area on Jeju Island. (Doc. 8-2 at 1, § b.) To own and operate the international schools in the Global Education City, the City Development Center established Haewul, Inc., a wholly owned subsidiary of the City Development Center. (Id. at 1-2, § d; see also Doc. 1 at 2, ¶ 8.)
Dr. Jang is a resident of Seoul, South Korea, where she is a professor of general education. She is a member of the Establishment and Operation of International Schools Subcommittee (the Establishment Subcommittee), a subcommittee of the Jeju Provincial Office of Education. (Doc. 1 at 3, ¶ 23.) Dr. Jang is also a member of Jeju Solidarity for Participatory Self Government and Environmental Preservation (Jeju Solidarity), a community organization focused on ensuring that the educational goals of the Global Education City are met. (Doc. 1 at 2, ¶¶ 9, 11, 12-13.)
The Academy operates a non-profit private school located in St. Johnsbury, Vermont, and owns a majority of stock in KDC, a Vermont for-profit corporation. (Doc. 1 at 1, ¶¶ 2, 3, 7; Doc. 8 at 2-3.)
II. The Project and Dr. Jang's Initial Investigations
A. Proposal and Cooperative Venture Agreement
In the spring of 2012, the City Development Center requested proposals for the establishment of a new international school in the Global Education City. (Doc. 8 at 2.) The Academy and KDC responded to this request, and the City Development Center ultimately proposed a joint venture with the Academy and KDC to establish and operate a new school known as St. Johnsbury Academy-Jeju (SJA-Jeju). (Id. ) As a
By the agreement's terms, the City Development Center would appoint a developer to construct the school in the Global Education City and, upon construction of the school, sell or lease the building to Haewul. (Doc. 8-2 at 6, §§ e, g.) The Academy would grant Haewul a license to use the Academy's intellectual property rights in connection with the promotion and operation of SJA-Jeju and, in consideration, Haewul would pay royalties to the Academy. (Id. at 6, § h, id. at 14, § 9.3.) Further, KDC would perform certain administrative and management functions for SJA-Jeju, such as ensuring that SJA-Jeju met the standards of the St. Johnsbury Academy in Vermont. (Id. at 6, § i, id. at 12, § 5.) In turn, Haewul would pay a management fee to KDC. (Id. at 14, § 9.4.)
B. Further Review and Approval of SJA-Jeju
Although the City Development Center, Haewul, the Academy, and KDC had entered into the cooperative venture agreement, the project could not move forward without being approved by the Jeju Provincial Office of Education, the body charged with reviewing and approving schools in the Global Education City. (Doc. 8 at 4.) To this end, the Provincial Office of Education formed the Establishment Subcommittee, which was charged with reviewing and approving the SJA-Jeju project. (Id. ) As noted above, at the relevant times, Dr. Jang was a member of this subcommittee. (Id. ; Doc. 1 at 3, ¶ 23.)
C. China Daily and Korea Times Articles
On May 6, 2013, China Daily published an article describing the development on Jeju Island. (See generally Doc. 8-11.) The article generally described the City Development Center's mission to create a free international city like Hong Kong or Singapore. (Id. ) Among the numerous projects described in the article, the article briefly noted that the City Development Center had formed partnerships with three international schools: North London Collegiate School; Branksome Hall; and St. Johnsbury Academy. (Id. ) The article stated in passing that SJA-Jeju was expected to open in September 2015. (Id. ) Similarly, an article in the Korea Times published on July 24, 2013, described the City Development Center's plan to establish seven international schools on Jeju Island by 2021. (Doc. 8-12 at 2.) The article succinctly stated that three schools had already opened on a trial basis and that SJA-Jeju was expected to open in September 2015. (Id. at 2-3.) Neither article mentioned a public controversy surrounding the establishment of the schools, nor did the articles mention Dr. Jang.
D. Dr. Jang's Presentation to the Establishment Subcommittee
SJA-Jeju was not yet open on January 15, 2016, when Dr. Jang submitted a "Summary of Preliminary Investigation" to the Provincial Office of Education and presented the information to the Establishment Subcommittee. (See generally Doc. 8-3; see also Doc. 8-1 at 3, ¶ 7.) Dr. Jang generally alleged in the summary that the relationship between KDC and the Academy was established to protect the Academy's non-profit tax status, that the Academy and KDC did not bear any risk if SJA-Jeju failed, and that the Academy and KDC lacked experience establishing and operating international schools. (Doc. 8-3 at 3-5.) She recommended further investigation by the Jeju Provincial Office of
E. Dr. Jang's Investigation in the United States
On February 1, 2016, Dr. Jang sought information regarding the governance of private schools from the National Association of Independent Schools (NAIS) in the United States. (Doc. 8-4 at 9-10.) In particular, Dr. Jang sought information regarding an independent school's procedures for approving "a franchised school in foreign country." (Id. at 9.) Attorney Debra Wilson, the Chief Counsel of NAIS, responded to Dr. Jang's request and explained that the procedures depended on the school board and the school's structure and bylaws. (Id. at 8.) After further email correspondence with Dr. Jang regarding the specific business structure of the Academy and KDC and their relationship with SJA-Jeju, Attorney Wilson offered to reach out to the Academy and KDC on behalf of Dr. Jang. (Id. at 6.) As a result, Attorney Wilson investigated Dr. Jang's claims; according to the Academy and KDC, Attorney Wilson concluded in a February 10, 2016 letter that Dr. Jang's claims had no merit.
F. Other Activities in Vermont Involving the Academy and KDC
At approximately the same time, in late January and early February 2016, the Academy and KDC claim that an unknown South Korean party contacted both the Vermont Department of Education and a private Vermont attorney. (Doc. 1-1 at 2, § b; Doc. 8-1 at 3, ¶ 8; Doc. 8-17 at 1, ¶ 2.) Allegedly, the unknown party requested help seeking documents relating to the cooperative venture agreement and the tax exempt status of the Academy. (Doc. 1-1 at 2, § b; Doc. 8-1 at 3, ¶ 8; Doc. 8-17 at 1, ¶ 2.)
G. Establishment Subcommittee Hearing
At a February 18, 2016 hearing, the Establishment Subcommittee considered Attorney Wilson's letter, which allegedly stated that Attorney Wilson "had performed an independent review of the documentary material" and that "the process of entry into the [cooperative venture agreement was] legal and customary for member independent schools of NAIS." (Doc. 1-1 at 2, § c.) At the meeting, according to the Academy and KDC, Dr. Jang attempted to refute Attorney Wilson's letter, (id. § d); however, the subcommittee voted to reconfirm the cooperative venture agreement, which was to be signed by the Academy at a private trustee meeting on May 7, 2016. (Id. § e.)
H. Boston Korea Actions and Article
On May 7, 2016, during the Academy's private trustee meeting, two Boston Korea newspaper reporters disrupted the proceedings to pass out questions for the Academy trustees. (Id. at 3, § f.) Subsequently, on May 12, 2016, Boston Korea
I. Caledonian-Record Article and Ethan Allen Institute Post
On May 6, 2016, an article appeared in the Caledonian-Record, a newspaper located in St. Johnsbury, Vermont, describing the establishment of SJA-Jeju. (Doc. 8-13 at 1.) According to the article, contractors had begun work on the project on April 29, 2016, with an anticipated enrollment date in Fall 2017. (Id. ) Further, the article generally described the anticipated academic programs, extracurricular activities, and the student-body makeup. (Id. at 1-2.) Finally, the article concluded with a general description of Jeju Island. (Id. at 2-3.) Subsequently, in a post on the Ethan Allen Institute website on May 18, 2016, the writer described the contents of the Caledonian-Record article and commended South Koreans and the leadership of the Academy for establishing SJA-Jeju. (Doc. 8-14.) The articles neither mentioned Dr. Jang nor described an ongoing controversy involving the establishment of SJA-Jeju.
J. Legal Proceedings Against Dr. Jang in South Korea
At some time in May 2016, according to the Academy and KDC, Haewul initiated criminal and civil legal proceedings against Dr. Jang in South Korea, purportedly as a result of the events described above.
III. The Allegedly Defamatory Letter
On July 12, 2016, Attorney Bruce Palmer, representing the Academy and KDC, sent a letter (the Letter) to Lee Seok-moon, the Governor of Education for Jeju Island, and copied the Establishment Subcommittee on which Dr. Jang sat. (See generally Doc. 1-1.) In the Letter, on behalf of the Academy and KDC, Attorney Palmer expressed a "deep concern[ ] about unauthorized and disruptive actions and false statements by Dr. Soonjung Jang, a member of the subcommittee of the Jeju Provincial Office of Education ... charged with reviewing and approving [SJA-Jeju]." (Doc. 1-1 at 1.) As a result, the Governor was asked to remove Dr. Jang from the subcommittee or, at the least, censure and disqualify Dr. Jang from "any further participation in or consideration of the approval of [SJA-Jeju]."
Finally, counsel pointed out many of the events described above, including Dr. Jang's contact with Attorney Wilson and Attorney Wilson's subsequent independent review and approval of the cooperating venture agreement,
IV. Subsequent Activities
A. Email Communication by Dr. Jang
After the July 12, 2016 Letter was sent to the Governor, Dr. Jang continued to pursue her investigation of the SJA-Jeju project. On July 23, 2016, Dr. Jang emailed Attorney Wilson again, stating that the Academy and KDC were using Attorney Wilson's statements to rationalize their business activities. (Doc. 8-4 at 24.) Attorney Wilson referred her to Attorney Palmer, as counsel for the Academy and KDC. (Id. at 26.) Palmer responded to Dr. Jang's emails by referring her to Haewul's counsel and by prohibiting Dr. Jang from directly contacting the Academy and KDC. (See generally Doc. 8-18.)
B. Legal Action by Jeju Solidarity
On September 22, 2016, an attorney representing Jeju Solidarity contacted the Academy and KDC seeking information relating to the Academy's relationship with KDC and the potential liability assumed by the Academy and KDC. (Doc. 8-19 at 2-3.) As noted above, Dr. Jang is a member of Jeju Solidarity, but she was not named in this correspondence. (See generally Doc. 8-19; Doc. 1 at 2, ¶ 9.) Counsel for the Academy and KDC referred the Jeju Solidarity attorney to Haewul. (Doc. 8-19 at 2.)
On October 25, 2016, Jeju Solidarity filed suit in this Court, seeking declaratory relief and production of certain documents as well as alleging that the Academy and KDC committed consumer fraud. (Doc. 8-8 at 2, ¶ 7.) This lawsuit was voluntarily dismissed by Jeju Solidarity. See Jeju Solidarity for Participatory Self-gov't & Envtl. Preservation v. St. Johnsbury Acad. , No. 5:16-cv-00274-gwc, Doc. 6 (D. Vt. Nov. 5, 2016). Following this dismissal, on November 15, 2016, Jeju Solidarity again requested documents from the Academy and KDC. (Doc. 8-22.) On December 5, 2016, Jeju Solidarity sought injunctive relief against the Academy and KDC in Vermont state court, claiming that the Vermont's Public Records Act, as set forth in
C. Dr. Jang's Written Agreement
On June 23, 2017, as noted above, following the investigation instigated by Haewul, Dr. Jang signed a "Written Agreement" directed to the Seoul Central District Prosecutor's Office in which Dr. Jang stated, "[I]t is not appropriate to express my opinion on the internet instead of committee meeting and such behavior may cause economic and/or administrative damage to [the Academy]." (Doc. 8-7 at 2.) She further agreed that she would "not do any negative activity against [Haewul] or SJA[-]Jeju through the internet including sending emails to parents individually or posting articles" and "not do any activity I have done so far such as submitting civil complaints." (Id. )
V. Opening of SJA-Jeju
SJA-Jeju opened in mid-October 2017.
A. Dr. Jang's Complaint
On August 31, 2017, prior to SJA-Jeju's opening, Dr. Jang filed the Complaint in this case,
As support for this claim, Dr. Jang asserts in her Complaint that Haewul made public representations that the Academy "would effectively be running [SJA-Jeju]," (id. at 2, ¶ 16), contrary to the Academy's purported representation that it would only be licensing its intellectual property without exercising control over SJA-Jeju. (Id. at 3, ¶¶ 18-19.) Based on this alleged contradiction, Dr. Jang states that she asked the Academy and KDC to provide documents clarifying their relationship, their control of SJA-Jeju, and their prospective liabilities for any potential failure of SJA-Jeju. (Id. at 3, ¶¶ 24-25.) She further alleges that the Academy and KDC refused her reasonable requests for records and instead, as a result of her "investigations and inquiries," caused their attorney to send the Letter to the Governor. (Id. at 4, ¶ 29.) Finally, she claims that the Letter's contents caused her significant injury, including "strong stigma" on her professional standing resulting in $500,000 of future losses, (id. ¶ 33), special damages of $115,000 in lost research funds, (id. at 5, ¶ 34, §§ c, d), professional condemnation from the other members of the Establishment Subcommittee, (id. ¶ 34, § b), and extreme emotional distress. (Id. ¶ 34, § e.)
B. The Academy and KDC's Motions
The Academy and KDC have filed two motions opposing Dr. Jang's claims. (Docs. 8, 11.) In their Joint Special Motion to Strike the Complaint pursuant to Vermont's anti-SLAPP statute,
In their Joint Motion to Dismiss for Failure to State a Claim under Federal Rule 12(b)(6), the Academy and KDC argue that the Complaint fails to set forth facts plausibly alleging the elements of defamation. (Doc. 11 at 7-8.) Specifically, they argue that the Letter's contents are pure opinion and, thus, not actionable, (id. at 8), that Dr. Jang does not allege that any of the statements in the Letter are false and defamatory, (id. at 10-11), that the Complaint fails to plead lack of privilege in the communication, (id. at 12), and that, because Dr. Jang is a public official or public figure, the Complaint fails to allege actual malice, as required by the First Amendment. (Id. at 13.) The Academy and KDC further allege that Dr. Jang's failure to allege actual malice precludes
Dr. Jang opposes both motions. (See generally Docs. 12, 15.) In her opposition to the Motion to Strike, Dr. Jang argues that the Academy and KDC were addressing their grievances in South Korea, rather than under the United States or Vermont Constitutions, and asserts that the Academy and KDC had no factual basis for claiming in the Letter that Dr. Jang's actions were unauthorized and disruptive. (Doc. 12 at 1.) Dr. Jang also argues in opposition to the Motion to Dismiss that she did not fail to plead that the Academy and KDC acted with malice and that the Letter's contents were false, pointing to her allegations in the Complaint that the Letter "maliciously claimed that the statements of [Dr. Jang] were unauthorized, disruptive and false when they were not" and that the request for removal was done "willfully, wantonly and recklessly to interfere with [Dr. Jang's] professional relationship with the subcommittee." (Doc. 15 at 1 (internal quotation marks omitted).) Finally, Dr. Jang again claims that "most of [her] inquiries and investigations were what her committee had authorized her to do as a committee member." (Id. at 2.) In reply, the Academy and KDC argue that Dr. Jang's responses in opposition merely repeat her conclusory and insufficient allegations, (Doc. 20 at 1), and that their constitutional rights to free speech and to petition the government extend beyond the United States' borders. (Doc. 21 at 1-2.)
On February 20, 2018, this Court held a hearing on the motions. (Doc. 26.) Immediately prior to the hearing, Dr. Jang filed a Motion for Leave to File Affidavits.
In their supplemental memorandum, the Academy and KDC again assert that the anti-SLAPP statute,
Analysis
I. Choice of Law
A. Applicable Defamation Law
Before addressing the substance of the Academy and KDC's motions, the Court must decide whether the law of South Korea or Vermont applies. As explained below, because neither party initially argued that South Korean law should apply nor provided evidence of that law, the Court concludes that the parties implicitly acquiesced to the application of Vermont law.
Because federal subject-matter jurisdiction in this case is based on diversity of citizenship, the Court must employ the choice-of-law analysis adopted by the forum state, in this case, Vermont law. See Fieger v. Pitney Bowes Credit Corp. ,
Defamation is governed by a specific section of the Restatement (Second), which provides: "In an action for defamation, the local law of the state where the publication occurs determines the rights and liabilities of the parties , ... unless, with respect to the particular issue, some other state has a more significant relationship."
In this case, however, the parties principally briefed and presented arguments based on Vermont law. (See generally Docs. 8, 11, 12, 15.) Further, although Dr. Jang's counsel briefly suggested at the February 20, 2018 hearing that South Korean law might apply, counsel did not "give notice by a pleading or other writing" of his intent to raise an issue concerning South Korean defamation law. See Fed. R. Civ. P. 44.1 (stating that party intending to raise issue of foreign law must "give notice by a pleading or other writing"); See In re Magnetic Audiotape Antitrust Litig.,
As a result, the Court concludes that, because all of the parties rely on Vermont law and the record contains no evidence of South Korean law, the parties have implicitly acquiesced to the application of Vermont defamation law.
B. Extraterritoriality of the First Amendment
A related issue to the choice-of-law analysis is whether certain First Amendment protections apply extraterritorially to the Letter's publication in South Korea. The Court concludes that, under these specific circumstances-where no evidence in the record points to competing considerations in South Korean law or United States foreign policy and where the parties impliedly consent to the application of Vermont law-the First Amendment applies.
Both motions before the Court involve the intersection of First Amendment safeguards and defamation law. Vermont's anti-SLAPP statute,
But it is an open question whether the First Amendment applies extraterritorially to protect an American citizen's commission of an alleged defamation abroad.
The few courts that have considered this question generally balance the foreign applicability of a United States citizen's First Amendment rights against the competing considerations of either the foreign country's relevant law or United States foreign policy. See, e.g., Drummond Co., Inc. v. Collingsworth , Case No. 13-mc-80169-JST (JCS), Case No. 13-mc-80171-JST (JCS),
In another case addressing the extraterritoriality of the First Amendment, Bullfrog Films, Inc. v. Wick , the district court analyzed whether the speech at issue "adversely affect[ed] foreign policy interests to such a degree that the speech [was] completely unprotected."
Here, the competing considerations identified by the courts in Desai and Bullfrog Films are not present to a degree that would justify depriving the Academy and KDC of their First Amendment rights. See Drummond Co., Inc. ,
Further, the parties have consented to the application of Vermont law. In Amiot v. Ames , the Vermont Supreme Court noted that, although Vermont's choice-of-law principles generally require the application of the state or nation's law where the most significant injury occurred, "there may be factors in an international case that would call for a different result."
In sum, the record contains no suggestion of competing considerations in either South Korea's defamation law or United States foreign policy and, moreover, the parties implicitly consented to the application of Vermont law. Accordingly, the Court concludes that the safeguards embodied in the First Amendment apply extraterritorially to the Letter's publication in South Korea.
II. Motion to Strike Under Vermont Anti-SLAPP Statute
The Court now considers the Academy and KDC's Joint Motion to Strike Dr. Jang's Complaint under
A. Legal Standard
Anti-SLAPP statutes are intended to discourage litigants from "filing baseless lawsuits known as Strategic Lawsuits Against Public Participation (SLAPP)." Bruce E.H. Johnson & Sarah K. Duran, A View From the First Amendment Trenches: Washington State's New Protections for Public Discourse & Democracy , 87 WASH. L. REV. 495, 496 (2012). In such lawsuits, "[t]he strategy is to file weak claims with the goal of silencing speakers because they fear the expense and travails of litigation."
To accomplish this goal, § 1041 sets forth a two-step burden-shifting process. First, the defendant bringing the special motion to strike must make a threshold showing that the case arises from "the defendant's exercise, in connection with a public issue, of the right to freedom of speech or to petition the government for redress of grievances under the U.S. or Vermont Constitution."
(1) any written or oral statement made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;
(2) 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;
(3) any written or oral statement concerning an issue of public interest made in a public forum or a place open to the public; or
(4) any other statement or conduct concerning a public issue or an issue of public interest which furthers the exercise of the constitutional right of freedom of speech or the constitutional right to petition the government for redress of grievances.
Once the defendant meets his or her burden by demonstrating that the act is connected to a public issue and that the act fits one of the four protected categories, the burden shifts to the plaintiff.
B. Application of § 1041 to the Letter
In applying § 1041, as noted above, this Court must first decide whether the Academy and KDC have satisfied their burden by demonstrating that the act is connected to a public issue. Section 1041 does not set forth the burden of proof that a defendant moving to strike must satisfy; however, in this Court, a special motion to strike is akin to a summary judgment motion under Fed. R. Civ. P. 56. See Bible & Gospel Trust ,
1. "Public Issue" Under Vermont Law
Like any case that calls for the application of Vermont law, this Court must apply § 1041 as the Vermont Supreme Court would apply it. See Morse v. University of Vermont ,
Since the enactment of § 1041, the Vermont Supreme Court has authoritatively interpreted the statute on one occasion, in Felis v. Downs Rachlin Martin PLLC ,
As support, the Supreme Court noted that those states that do not limit their anti-SLAPP statutes to "public issues," like California and Texas, had been overwhelmed by anti-SLAPP litigation and that sophisticated litigants in those states often used anti-SLAPP actions to elevate common civil claims to constitutionally protected actions. Id. ¶¶ 49 -50. According to the Supreme Court, the Vermont Legislature could not have intended such an "expansive use of the anti-SLAPP remedy in circumstances far afield from the paradigm on which the statute was based." Id. ¶ 51. That is, the Legislature intended to prevent one side of a public debate from misusing the court system to unilaterally control an issue and, in particular, to prevent those with extensive financial resources from intimidating and silencing citizen participants. Id. ¶¶ 47, 48. As a result, to limit the overuse of § 1041 as a remedy, the Vermont Supreme Court concluded that all motions to strike must be based on protected activity connected to a public issue. Id. ¶ 52.
After Felis , the plaintiffs in Ernst I moved for reconsideration in this Court, arguing that Felis constituted an intervening change in controlling law that changed the Ernst I outcome. See generally Ernst v. Kauffman , Case No. 5:14-cv-59,
In this case, although the facts of Felis and Ernst II are not analogous, the Court draws several conclusions from the analysis in both cases. First, as a general matter, the present case does not involve the power dynamics the Vermont Supreme Court found to be one of the concerns addressed by § 1041. Felis ,
More important, a review of the Letter's contents and the other evidence in the record demonstrates that the Academy and KDC were focused on protecting those business interests, rather than addressing a public issue. (See generally Doc. 1-1; Docs. 8-1-8-24.) Specifically, the Academy and KDC were concerned that Dr. Jang's actions exhibited bias that would negatively influence the review and approval of SJA-Jeju and asked the Governor to remove Dr. Jang from the committee. (See Doc. 1-1.) Nothing in the Letter suggests that the Academy and KDC were voicing their opinions as part of a public dispute or that the Letter's description of Dr. Jang's personal actions concerned broad issues of public interest. Cf. Felis ,
The lack of evidence in this case contrasts starkly with Dongguk University v. Yale University , upon which the Academy and KDC placed great reliance at the February 2018 hearing before this Court. Hearing Argument at 2:08-2:10, 2:18-2:21, Jang , No. 2:17-cv-162 (referencing Dongguk Univ. v. Yale Univ. ,
Moreover, the analysis in Dongguk University did not involve the application of an anti-SLAPP statute to purportedly defamatory statements; instead, Dongguk University involved the First Amendment safeguards relevant to Dongguk's common law defamation claims. Dongguk Univ. ,
2. "Public Issue" Under California Law
This Court draws further support for this conclusion from California law, which contains an anti-SLAPP statute substantially similar to § 1041. In particular, the Court concludes that the Academy and KDC have not adduced sufficient evidence demonstrating that the Letter involves a "public issue" under the three-factor test employed by California's appellate courts. Thus, the Academy and KDC fail to satisfy the threshold requirement that the Letter's publication to the Governor was " 'in connection with a public issue.' " Felis ,
Since Felis , the Vermont Supreme Court has not published any controlling precedent interpreting § 1041(a) or further defining the judicially imposed "public issue" requirement.
With that important limitation in mind, the Court turns to California law, which requires the moving party to make a prima facie showing that the plaintiff's cause of action involved a public issue. Wilbanks v. Wolk ,
whether (1) the subject of the statement or activity precipitating the claim was a person or entity in the public eye; (2) [whether] the statement or activity precipitating the claim involved conduct that could affect large numbers of people beyond the direct participants; and (3) whether the statement or activity precipitating the claim involved a topic of widespread public interest.
Id. at 898,
a. Person or Entity in Public Eye
First, the record does not demonstrate that Dr. Jang is a person or entity in the public eye.
As previously recognized by this Court, "the standard for determining whether a person is 'in the public eye' appears to be similar if not identical to the standard for determining whether a person is a 'public figure' under First Amendment defamation law." Ernst I ,
(1) successfully invited public attention to his views in an effort to influence others prior to the incident that is the subject of litigation; (2) voluntarily injected himself into a public controversy related to the subject of the litigation; (3) assumed a position of prominence in the public controversy; and (4) maintained regular and continuing access to the media.
In the alternative, a public official may be in the "public eye" if he or she is "among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs." Rosenblatt v. Baer ,
Here, the Academy and KDC do not argue, nor could they, that Dr. Jang is a general-purpose public figure. Instead, they claim that Dr. Jang is in the public eye because she is both a limited-purpose public figure and a public official. As support, they point to Dr. Jang's involvement in the Establishment Subcommittee charged with reviewing and approving SJA-Jeju. (Doc. 8 at 11.) They further argue that, "[Dr. Jang] very publicly inserted herself into the debate over the appropriateness of SJA Jeju's approval." (Id. ) But neither claim is supported by the evidence.
First, the news articles submitted by the Academy and KDC do not suggest that the public in South Korea or Vermont knew of Dr. Jang's attempts to influence the alleged controversy surrounding the approval of SJA-Jeju. Indeed, as noted above, the only news article to mention Dr. Jang by name was published after the initiation of this lawsuit and after the Letter's publication in South Korea. (See Doc. 8-15.); Cf. Ernst I ,
The only evidence possibly suggesting that Dr. Jang's actions thrust her into the public eye is the "Written Agreement" in which Dr. Jang promised to forgo "negative activity against ... SJA Jeju" on the internet and to stop "providing information to Media," presumably regarding SJA-Jeju. (Doc. 8-7.) But Dr. Jang executed the agreement on June 23, 2017, well after the Academy and KDC sent the Letter to the Governor. (Doc. 8-1 at 4, ¶ 12.) In other words, the Written Agreement does not show that Dr. Jang's actions were in the public eye at the time the Letter was published. Cf. Ernst I ,
Further, the record does not show that Dr. Jang was a public official with "substantial responsibility for or control over the conduct of governmental affairs." Rosenblatt ,
In sum, the Academy and KDC's argument that Dr. Jang's status as a limited-purpose public figure or public official placed her in the public eye is not supported by evidence in the record. Absent clear evidence, the Court remains mindful that § 1041 should be construed as limited in scope, Felis ,
b. Effect of the Letter Beyond Direct Participants
Under the second factor, the Academy and KDC argue that the Letter adversely affected prospective students of SJA-Jeju and their parents. Although this argument has some theoretical merit, it is not supported by the record.
Here, it is conceivable that the Letter's information could have adversely affected prospective students of SJA-Jeju and their parents, as the Academy and KDC argue. (Doc. 8 at 11.) On the other hand, no evidence in the record supports this purported impact and, more important, no evidence demonstrates that the prospective students and their parents were participating in an "ongoing controversy, dispute, or discussion" involving Dr. Jang and the establishment of SJA-Jeju. Du Charme ,
Similarly, there is some notional merit to the Academy and KDC's claim that the citizens of Vermont and South Korea have a vested interest in an "educated citizenry." (Doc. 8 at 11-12; Doc. 30 at 3.) But again, the record does not support this argument in relation to SJA-Jeju. For example, the information in the Letter was of little intrinsic value to Vermonters; plainly, the establishment of SJA-Jeju had little influence on the educated citizenry of Vermont. Further, nothing in the Letter suggests that Dr. Jang's conduct affected broad educational concerns in South Korea. Instead, the Letter describes Dr. Jang's personal efforts to investigate SJA-Jeju and requests her removal. (See generally Doc. 1-1.) Absent specific evidence that Dr. Jang's actions generally implicated the whole of South Korea's educational system, the Academy and KDC's reliance on the amorphous concept of an "educated citizenry" is misplaced. Cf. Rivero, AFL-CIO,
In short, while the Letter's contents conceivably affected the students and parents of SJA-Academy, the record provides little support for this argument. Such limited support, particularly in light of the two other factors, does not persuade the
3. Topic of Widespread Public Interest
Finally, the Academy and KDC fail to establish that the Letter's contents involved a topic of widespread public interest.
California courts look to several factors to determine if the statement or activity precipitating the plaintiff's claim involved a topic of widespread public interest. Wilbanks ,
As described above, the Letter's contents involved an essentially private business dispute, not an issue of widespread interest. In the Letter, counsel for the Academy and KDC requested that the Governor remove or disqualify Dr. Jang from the Establishment Subcommittee. (Doc. 1-1 at 1.) This request was made to protect their financial interests and to ensure that the committee would approve SJA-Jeju, not out of concern that the public's interests would be compromised. For example, the Letter does not connect Dr. Jang's purportedly biased acts and statements to any concern for potential SJA-Jeju students or South Korean educational standards. (Compare id. at 2-3, §§ a-g), with Weinberg ,
The private nature of the dispute is reinforced by the news articles in the record, which do not establish the requisite closeness between the information contained in the Letter and the general public's interest.
In sum, because § 1041 must be narrowly construed under Felis , the Academy and KDC have failed to make a prima facie showing that the Letter involves a "public issue" based on precedent applying California's analogous anti-SLAPP statute. This determination, along with this Court's above decision that the record evidence is insufficient under Vermont law, compels the conclusion that the Academy and KDC have not carried their initial burden under § 1041, and their special motion to strike must be DENIED.
III. Motion to Dismiss for Failure to State a Claim
The Court next addresses the Academy and KDC's Motion to Dismiss for Failure to State a Claim. (Doc. 11.) As set out in greater detail below, Dr. Jang fails to state a defamation claim for two reasons: (1) she has not adequately pled the elements of common law defamation under Vermont law; and (2), to the extent the First Amendment applies extraterritorially, her claim falls short of plausibly pleading that the Letter was written and published with "negligence" as to the truth. Similarly, Dr. Jang fails to state a claim for tortious interference with profession because the Complaint does not contain sufficient factual allegations for this Court to reasonably infer that the Letter contained a false statement. Thus, Dr. Jang's claims are not plausible on their face and the Academy and KDC's Joint Motion to Dismiss must be GRANTED.
A. Legal Standard
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal ,
B. Defamation Claim
1. Elements of Defamation under Vermont Law
Under Vermont law, to make out a claim for defamation, a plaintiff must establish the following elements:
(1) a false and defamatory statement concerning another; (2) some negligence, or greater fault, in publishing the statement; (3) publication to at least one third person; (4) lack of privilege in the publication; (5) special damages, unless actionable per se; and (6) some actual harm so as to warrant compensatory damages.
Lent ,
2. Common Law Elements of Defamation
As to the common law elements, Dr. Jang's Complaint does not contain sufficient
a. False and Defamatory Statement
As an initial matter, Dr. Jang's Complaint does not identify the specific false and defamatory language at issue in the Letter. Dr. Jang alleges that the Letter is "libelous and defamatory in that it maliciously claimed that the statements of [Dr. Jang] were unauthorized, disruptive and false when they were not." (Doc. 1 at 4, ¶ 30.) But this quoted language is not contained in the Letter. Consequently, the Court is unable to determine whether certain statements are capable of being characterized as opinion or fact. Cf. Knelman v. Middlebury Coll. ,
Moreover, even if Dr. Jang pleaded the purportedly defamatory statements with sufficient specificity, her Complaint does not plausibly allege that the Letter contained a false and defamatory statement. Specifically, as discussed below, although the Letter's contents are actionable to the extent the mixed opinions in the Letter rely on demonstrable facts, the allegations set forth in Dr. Jang's Complaint do not credibly suggest that these contents were substantially false, as required for a common law defamation claim.
i. The Letter Contains Mixed Opinions
Whether a statement is opinion or fact is a question of law for the court. Knelman ,
Vermont has not adopted a test to determine whether a statement is "fact" or "opinion," but this Court has previously concluded that the following factors are relevant under Vermont law:
(1) An assessment of whether the specific language in issue has a precise meaning which is readily understood or whether it is indefinite and ambiguous; (2) a determination of whether the statement is capable of being objectively characterized as true or false; (3) an examination of the full context of the communication in which the statement appears; and (4) a consideration of the broader social context or setting surrounding the communication including the existence of any applicable customs or conventions which "might signal to readers or listeners that what is being read or heard is likely to be opinion, not fact.
Knelman ,
As noted above, Dr. Jang's Complaint does not identify the specific false and defamatory language at issue in the Letter. After a general review of the Letter, however, the Court concludes that the statement most closely corresponding with Dr. Jang's pleading is an opinion. see also Galley Schuler v. Rainforest All., Inc. ,
On the other hand, the characterization of Dr. Jang's conduct is based on a number of objectively verifiable events disclosed in the Letter, (see generally Doc. 1-1 at 2-3, §§ a-g); thus, the Letter's contents constitute " 'mixed opinions' that are not per se excluded as the basis for a defamation claim." Cf. Knelman ,
ii. Substantial Accuracy of Underlying Facts
Concluding that Dr. Jang's Complaint acknowledges the substantial accuracy of the events described in the Letter rather than refuting the underlying facts, Dr. Jang has not adequately alleged falsity in her Complaint.
A defendant is not subject to liability for defamatory statements of fact if the statement is true. Restatement (Second) of Torts § 581A. In Vermont, "it is not necessary to prove the literal truth of the accusation in every detail, ... it is sufficient to show that the imputation is substantially true, or, as it is often put, to justify the 'gist,' the 'sting,' or the 'substantial truth' of the defamation." Weisburgh v. Mahady ,
Here, Dr. Jang states in her Complaint that the Letter "maliciously claimed that the statements of [Dr. Jang] were
Finally, to the extent that Dr. Jang argues that the Letter's contents were false because she had the authority to conduct her inquiries and investigations, her claim is contradicted by the Complaint and attached Letter. In Dr. Jang's Opposition to the Joint Motion to Dismiss, she states that her "inquiries and investigations were what her committee had authorized her to do as a committee member." (Doc. 15 at 2.) But the Letter indicates that the committee "did not request or authorize this contact by Dr. Jang or the sharing of documents." (Doc. 1-1 at 2, § a.) Dr. Jang does not offer facts plausibly suggesting that this statement is false. Moreover, even if parts of her investigation were authorized, it appears from the face of the Complaint that the gist of the Letter is true. See Weisburgh ,
Accordingly, Dr. Jang's Complaint fails to plead facts that, if proven, would establish that the verifiable events described in the Letter were not substantially true; instead, the face of her Complaint acknowledges the substantial accuracy of the Letter's contents.
b. Lack of Privilege
Even if Dr. Jang's Complaint adequately pled falsity, the Complaint fails to plausibly allege that counsel for the Academy and KDC acted with the common law malice necessary to overcome counsel's privilege to communicate information intended to protect the Academy and KDC's lawful business interests. Thus, the Motion to Dismiss must be granted on this alternative basis.
Under Vermont law, a plaintiff must allege lack of privilege in the publication of the allegedly defamatory statement.
Here, counsel for the Academy and KDC sent the Letter to support his clients' legitimate business interests. (See generally Doc. 1-1.) Specifically, counsel noted in the Letter that the Academy and KDC reasonably believed that Dr. Jang's previous conduct and her statements could substantially affect the review and approval of SJA-Jeju. (Id. at 3.); See Skaskiw ,
But adequate allegations of common law malice are not present in the Complaint. Skaskiw ,
Based on the foregoing, the Academy and KDC's Motion to Dismiss must be granted because Dr. Jang's Complaint does not plausibly allege common law malice
3. Constitutional Elements of Defamation
Even if Dr. Jang had plausibly alleged facts showing her common law defamation claim, she does not plead credible facts justifying an inference that the Academy and KDC negligently delivered the Letter to the Governor and the Establishment Subcommittee.
To satisfy the constitutional fault requirements imposed by the United States Supreme Court, a plaintiff pleading a defamation claim in Vermont must allege "some negligence, or greater fault, in publishing the statement."
Although the Vermont Supreme Court has not yet applied the negligence standard in a defamation suit, this Court has previously concluded that a defendant does not negligently publish a statement if the defendant "had reasonable grounds for believing that the communication was true." Stone v. Banner Pub. Corp. ,
Here, Dr. Jang's Complaint does not contain any factual assertions pointing to the Academy and KDC's negligence. Although her Complaint alleges that the Academy and KDC acted "maliciously" as well as "willfully, wantonly, and recklessly," (Doc. 1 at 4, ¶¶ 30, 31), she does not connect these conclusory allegations with any recitation of facts from which the Court can infer that the Academy and KDC negligently failed to check the accuracy of the Letter's contents. Faber ,
Because Dr. Jang's Complaint contains no factual allegations from which this Court can infer fault, the Motion to Dismiss must be granted on this alternative basis.
C. Interference with Professional Relationship
Finally, the Court addresses the assertion by Dr. Jang's counsel at the February 20 hearing that the Complaint set forth a claim for "interference with profession," (Doc. 1 at 2, ¶ 9), or "interfere[nce] with ... professional relationship." (Id. at 4, ¶ 31.) Neither cause of action is recognized in Vermont, nor does a generally recognized tort for interference with profession exist. The closest analogs in Vermont law are "tortious interference with a contract" and "tortious interference with prospective contractual relations." Gifford v. Sun Data, Inc. ,
Here, Dr. Jang's Complaint does not recite that the Academy and KDC's interference was "improper," let alone point to facts that elevate Dr. Jang's right to relief above a speculative level. Cf. Twombly ,
Accordingly, based on this determination and the Court's prior conclusions regarding Dr. Jang's defamation claim, the Academy and KDC's Joint Motion to Dismiss for Failure to State a Claim must be GRANTED. (Doc. 11.)
Conclusion
For the foregoing reasons, the Academy and KDC's Joint Motion to Strike under 12 V.S.A. § 1041 (Doc. 8) is DENIED and the Academy and KDC's Joint Motion to Dismiss for Failure to State a Claim is GRANTED and the case is DISMISSED. (Doc. 11.) Given the Court's conclusion that Dr. Jang's Complaint must be dismissed for failure to state a claim, her Motion for Leave to File Affidavits is DENIED as moot. (Doc. 25.)
Notes
For purposes of deciding the Academy and KDC's Motion to Dismiss, the Court solely relies on the facts set forth in Dr. Jang's Complaint and the Letter attached to the Complaint, not the documents submitted with the Motion to Strike. See Haywood v. St. Michael's Coll. , Civil Action No. 2:12-cv-164,
As support for this contention, the Academy and KDC rely on Doc. 8-5; however, the Court notes that this exhibit is a letter dated September 30, 2016, well after Attorney Wilson's investigation concluded. (Doc. 8-5 at 2.) Moreover, Doc. 8-5 merely confirms the existence of the February 10, 2016 letter, it does not describe any of the information contained in the February 10 letter. (Id. )
It is not entirely clear whether this hearing occurred before the Establishment Subcommittee or the Office of Provincial Education. (Compare Doc. 1-1 at 2, § c, with
The Academy and KDC do not explain how a civil party such as Haewul may bring a criminal action against a private citizen, nor do the Academy and KDC describe the general process of a civil and criminal investigation in South Korea.
It is unclear from the record what further approvals of SJA-Jeju were required. As noted above, it appears that contractors had begun work on the project on April 29, 2016, prior to the Letter being sent to the Governor. (Doc. 8-13 at 1.) But, according to the Academy and KDC, the Provincial Office of Education did not fully approve SJA-Jeju until September 22, 2017. (Doc. 8 at 7.)
The Court notes that, in the Letter, counsel described Dr. Jang's interaction with Attorney Wilson as occurring in February 2015. (Doc. 1-1 at 2, § a.) But given the other evidence in the record, (see, e.g. , Doc. 8 at 4; Doc. 8-4 at 9-10), it is clear that the correct date is February 2016.
The Court notes that the new attorney was a member of the law firm currently representing Dr. Jang in this pending matter; however, Dr. Jang was not mentioned in any of the correspondence relating to the litigation pursued by Jeju Solidarity.
The Academy and KDC state that SJA-Jeju opened on October 23, 2017, and, for support, they cite an article in the Caledonian Record. (See Doc. 8 at 7.) But that article, which is dated October 23, 2017, indicates that SJA-Jeju opened the week prior to October 23, 2017. (Doc. 8-16.)
Dr. Jang's Complaint against the Academy and KDC was reported in the Caledonian-Record on September 22, 2017, (see generally Doc. 8-15); the article described the contents of the Letter and accurately reported Dr. Jang's claims and requested relief. (Id. )
In a separate document, the Academy and KDC oppose this motion, arguing that Dr. Jang failed to show excusable neglect. (See Doc. 31 at 1-2.) Dr. Jang disputes this contention, asserting that her Motion for Leave to File Affidavits did not prejudice the Academy and KDC because it only contained affidavits that had previously been filed under oath. (Doc. 32.) As the Court noted at the hearing, Dr. Jang's contention is correct: duplicates of these affidavits had previously been filed with Dr. Jang's Opposition to the Motion to Dismiss, although the previous affidavits had not been notarized. (See generally Doc. 15-1-15-3.) Thus, granting Dr. Jang's motion would not prejudice the Academy and KDC in any manner. Silivanch v. Celebrity Cruises, Inc. ,
At the hearing, Dr. Jang's counsel waived any claim for intentional infliction of emotional distress. Hearing Argument at 2:00-2:02, Jang, No. 2:17-cv-162. Even if Dr. Jang did not waive this claim, the Court notes that the Complaint is devoid of any facts from which the Court can infer "outrageous conduct, done intentionally or with reckless disregard of the probability of causing emotional distress, resulting in the suffering of extreme emotional distress, actually or proximately caused by the outrageous conduct."Crump v. P & C Food Markets, Inc. ,
In their supplemental memorandum, the Academy and KDC argue that the SPEECH Act, codified as
Although certain federal courts have declined to apply state anti-SLAPP provisions on the basis that such provisions conflict with the Federal Rules of Civil Procedure, See, e.g., Stuborn Ltd. Partnership v. Bernstein ,
In their supplemental memorandum, the Academy and KDC argue in a footnote that this statement is "non-binding dictum" because the statement was broader than necessary to resolve the issue in Felis . (Doc. 30 at 3-4 n.2 (citing Schulman v. Saloon Beverage, Inc. ,
After Felis , the Vermont Supreme Court has issued three nonprecedential entry orders addressing § 1041(a). In one, the Supreme Court determined that § 1041(a) protected the defendant's newspaper article, which described the plaintiff's criminal charges arising out of public confrontations. Chandler v. Rutland Herald Publ'g , No. 2015-265,
The Court does not credit the lawsuits initiated by Jeju Solidarity or the activities of the Boston Korea reporters as evidence that Dr. Jang thrust herself into a public controversy. First, no evidence in the record connects Dr. Jang with the Boston Korea reporters. (See generally Doc. 8-6.) Second, although Dr. Jang admits to being a member of Jeju Solidarity, (Doc. 1 at 2, ¶ 9), the record does not establish that Dr. Jang was a party to any of the lawsuits filed in Vermont prior to the present case before the Court. (See Docs. 8-8, 8-9, 8-10.) Moreover, a person participating in a proceeding in public court does not necessarily become a limited-purpose public figure, Cf. Biro v. Condé Nast ,
The Court notes that two of the articles cited by the Academy and KDC were published after the Letter was delivered and, as a result, cannot form the basis of any public dispute allegedly addressed in the Letter. (Compare Doc. 1-1, with Docs. 8-15, 8-16.)
It is not entirely clear whether "falsity" is an element in a modern defamation action under Vermont law or whether it remains an affirmative defense. At common law, although the plaintiff was required to allege falsity in the complaint, defamatory statements were presumed to be false. See Ryan v. Herald Ass'n, Inc. ,
The Academy and KDC urge this Court to follow the lead of the Second Circuit in Tannerite Sports and conclude that "falsity" is an element of Vermont law, (see Doc. 11 at 10), but the Court need not decide this issue. Instead, the Court concludes that, because Dr. Jang's factual allegations in the Complaint show the presence of the affirmative defense of truth, she must allege plausible facts pointing to the Letter's falsity. See Wright & Miller, 5 Fed. Prac. & Proc. Civ. § 1277 ("[M]otions to dismiss or to strike only can attack matters appearing on the face of the complaint."). This conclusion is supported by the Vermont Supreme Court's decision in Skaskiw v. Vt. Agency of Agric. ,
Given the Court's conclusion that Dr. Jang did not plausibly allege falsity in her Complaint, the Court need not consider the defamatory nature of the Letter's contents. See Restatement (Second) of Torts § 581A ("One who publishes a defamatory statement of fact is not subject to liability for defamation if the statement is true."). The Court notes, however, that Dr. Jang's allegations of professional harm from the Letter appear to plausibly show that her reputation was harmed so as to lower her in the estimation of the community and that third parties were deterred from associating with her. (See Doc. 1 at 4-5, ¶¶ 34-35); see also Weisburgh ,
As noted above, even though the absence of privilege is an element of the tort of defamation, under Vermont's pleading rules, a privilege should be "seen as an affirmative defense with the burden of proof on the defendant." Skaskiw ,
The Court uses the term "common law malice" because, as recognized by the Vermont Supreme Court, "common law malice" serves a different purpose from the "actual malice" standard set forth by the Supreme Court in New York Times Co. v. Sullivan . See Ryan ,
Dr. Jang's failure to plausibly allege common law malice also dooms any request for punitive damages as a result of the defamation. Cf. Crump ,
The Academy and KDC also assert that the Letter was a privileged communication to a public official because the Letter involved "a sufficiently important public interest," which "concern[ed] matters that affected the discharge of [the official's] duties. Restatement (Second) of Torts § 598 cmt. e. As set forth in the Restatement (Second), this privilege applies to information provided to the authorities concerning crime prevention or to complaints made to the authorities about the conduct of public officials.
The Academy and KDC argue that Dr. Jang is a public official or public figure and that, as a result, Dr. Jang must plead facts showing that the Academy and KDC published the Letter with actual malice, a higher standard of fault than negligence. (See Doc. 11 at 13-17 (citing Gertz ,