Updated at 5:15 p.m.
Two of the most-watched pieces of litigation surrounding the District of Columbia's relatively new anti-SLAPP law could merge, if Washington attorney and political strategist Lanny Davis gets his way.
Davis, the subject of a defamation lawsuit in Washington federal court, is appealing the denial of a special motion to dismiss that he filed under the city's law barring strategic lawsuits against public participation, or SLAPPs.
Davis, according to a motion (PDF) filed on March 23, wants to consolidate his case with a defamation lawsuit filed by former U.S. Department of Agriculture official Shirley Sherrod against the late blogger Andrew Breitbart and his colleague Larry O’Connor. Sherrod, in a filing (PDF) yesterday, expressed her opposition to Davis' motion.
The two cases, which are pending before the U.S. Court of Appeals for the D.C. Circuit, present early tests of the city's anti-SLAPP statute. The law, which went into effect in March 2011, offers an early route to dismissal for defendants who believe they’re being unlawfully sued over protected speech.
Breitbart and O’Connor, like Davis, are appealing the denial of a special motion to dismiss under the anti-SLAPP law. Davis is arguing that consolidation makes sense because both appeals involve the same core issue of whether the law can be applied in federal court proceedings.
In yesterday's filing, Sherrod objected to what she characterized as a “highly unusual motion,” saying the cases were too different, both in terms of the underlying facts and legal issues at play on appeal. As an example, Sherrod noted that a key issue in her case is whether the anti-SLAPP law can be applied retroactively to litigation filed before the law went into effect, which is not an issue in the Davis case.
Sherrod sued Breitbart and O’Connor in February 2011, accusing the two of defaming her by posting a deceptively edited video clip online. The clip appeared to show Sherrod, who is black, admitting to discriminating against a white farmer seeking her help, but the full video showed that was not the case. Sherrod was forced to resign, but later received apologies from the White House and other officials.
Breitbart and O’Connor moved to dismiss under the anti-SLAPP law, a request that U.S. District Judge Richard Leon denied in July. Leon, in an explanation of his decision published on Feb. 15, ruled that the law didn’t apply because the case had been filed before it went into effect. Additionally, Leon found that the law conflicted with federal rules of procedure. Breitbart and O’Connor appealed.
Davis was sued by 3M Co. in August. 3M accused Davis of making defamatory remarks about the company as part of his representation of Porton Capital Inc., which has been involved in litigation over 3M’s decision to stop marketing a device used to test for certain strains of staph bacteria.
In an opinion (PDF) published Feb. 2, U.S. District Judge Robert Wilkins denied Davis’ motion to dismiss under the anti-SLAPP law. Wilkins found that the anti-SLAPP law conflicted with federal rules of procedure. Davis appealed.
The court does allow for consolidation of cases that present similar or related issues, but Sherrod and Davis have offered different interpretations of what that means in practice.
Davis said in his brief that O’Connor and the District of Columbia do not oppose his motion, a fact that attorneys for O’Connor and the District confirmed today. The District’s Office of the Attorney General has been involved in the Davis case in order to defend the law’s legitimacy.
“We believe it just makes sense that the two appeals should be consolidated,” Davis’ attorney, Raymond Mullady Jr. of Blank Rome, said in a written statement.
“The orders being appealed in both cases involve the pure legal issue of whether the D.C. Anti-SLAPP Act applies in federal court actions under the Erie doctrine, and we believe that in Mr. Davis’ case, as in the Breitbart case, the D.C. Circuit will be deciding whether it has jurisdiction to hear the appeal of that issue now, before the cases proceed further in the trial court,” Mullady said.
An attorney for Sherrod, Thomas Clare of Kirkland & Ellis, declined to comment on the case beyond yesterday’s filing. “Joint briefing would not be practical because two different sets of parties would need to address two different sets of facts and two different procedural histories,” he argued in that brief. “Moreover, the Breitbart Appellants would want to address three legal issues that turn on the particular facts and procedural history in Breitbart but do not matter in Davis.”
Mark Bailen of Baker & Hostetler, an attorney for O’Connor, said his client supported consolidation because it would be “an efficient way for the court to address the critical question in this case.” Ted Gest, a spokesman for the city attorney general’s office, declined to comment on the city’s position except to confirm that they did not object to consolidation.
Lead counsel for 3M, William Brewer III of Bickel & Brewer, said in a written statement: “We oppose consolidation and believe the cases should evolve separately.”
Breitbart died on March 1. His attorney, Eric Kuwana of Katten Muchin & Rosenman, declined to comment on his client’s status in the case. Neither party has filed notice with the court about what should happen to the claims against him; the plaintiffs have the option of substituting his estate in his stead.