Lanny Davis Moves to Merge His Anti-SLAPP Appeal With Breitbart Case

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.

Comments

[Shrinath]

The story of Shirley Miller Sherrod is morphing from anti white raicst to human rights advocate She grew up in the racially afflicted south.In 1965 her father, Hosie Miller, a black man and a deacon at Thankful Baptist Church, was shot to death by a white farmer in what ostensibly was a dispute over a few cows,The all-white grand jury didn't bring charges against the shooter.That summer, when she and several other blacks went to the county courthouse to register to vote, the county sheriff blocked the door and even pushed her husband-to-be, Lester Sherrod, down the stairs, she said.She went on to earn her master's degree in community development from Antioch University in Yellow Springs, Ohio.Sherrod returned to rural Georgia to help minority farmers keep their land. Because of discriminatory lending practices, black farmers were losing their farms in the late 1960s and '70s.Sherrod co-founded New Communities Inc., a black communal farm project in Lee County, Georgia, that was modeled on kibbutzim in Israel. Local white farmers viciously opposed the 6,000-acre operation, accusing participants of being communists and occasionally firing shots at their buildings, Sherrod said.When drought struck the South in the 1970s, the federal government promised to help New Communities through the Office of Economic Opportunity. But the money was routed through the state, led by segregationist Gov. Lester Maddox, and the local office of the Farmers Home Administration, whose white agent was in no hurry to write the checks, she said.It took three years for New Communities to get an emergency loan, she said. By then it was too late.With black-owned farms heading toward extinction, Sherrod and other activists sued the USDA. In a consent decree, the USDA agreed to compensate black farmers who were victims of discrimination between January 1, 1981, and December 31, 1999. It was the largest civil rights settlement in history, with nearly $1 billion being paid to more than 16,000 victims. Legislation passed in 2008 will allow nearly 70,000 more potential claimants to qualify.USDA hired Sherrod as its Georgia director of rural development in August 2009. She was the first black person in that position; of 129 USDA employees in Georgia, only 20 are black, she said.Despite her father's killing and the injustices that followed, the racial hatredshe has fought all her life, and now her quick exit from the USDA, Sherrod refuses to become bitter. I can't hold a grudge. I can't even stay mad for long, she said. I just try to work to make things different. If I stayed mad, if I tried to hate all the time, I wouldn't be able to see clearly in order to do some of the things that I've been able to do. Even with this, I'm not angry. I'm not angry. I'm out of a job today, but I'm not angry. I will survive. I have. I can't dwell on that. I just feel there's a need to go forward. Even Conservatives has shown a great respect for this black woman who has spent her life fighting discrimination.And now the Secretary of Agriculture and the Administration is admitting that they should have taken the time to listen to her whole speech instead of just the doctored version posted on a conservative blog which seemed to show her saying she held back from helping a white farmer stay on his land.Even The white farmer and his wife who are at the center of this controversy praised Sherrod for helping them fight to keep their farm from foreclosure.Shirley Miller Sherrod can certainly hold her head up highShe is an example of the best qualities that all of us should emulate in our racially divided country.

[Daniel]

When I read this, I'm thinking about the laws of swieng and reaping. Assuming she is not reinstated, Ms. Sherrod will simply be reaping what the NAACP has sewn all of these years. The "left" has taken out of context the words of many people over the years and used them to destroy people. Now one of their own may be having the same thing done to them. Also, if you associate with people who use such tactics, it is the same as though you are using them yourself. In other words, she should hardly be surprised she got hit with the same tactics her pals have used to destroy others. Specifically take their words out of context and use it to destroy them. FF estimates there is a 50/50 chance she will be reinstated. I estimate it is a 90% chance she will be reinstated.As for Mr. Breitbart, if it shown that he edited the tapes himself, his career as a journalist is finished. He will be sued for libel and every thing he has will be taken from him. If someone can establish he edited these tapes himself, this story will not die down but it will widely disbursed to "prove" that critics of the NAACP are racists.In sumamry, the questions are did Mr. Breitbart edit these tapes himself, did someone on his staff do it, how did he get these tapes? This may turn out to be a negative for the opponents of NAACP and Barack Obama.