DC Court of Appeals Holds That Winning Anti-SLAPP Defendant Presumptively Gets Attorney Fees

Resolving an ambiguity in the District of Columbia's Anti-SLAPP law, the DC Court of Appeals held today in Doe No. 1 v. Burke that a defendant who succeeds in a special motion to quash a subpoena for the defendant's identifying information is presumptively entitled to have attorney fees awarded, absent special circumstances rendering such an award unjust.

The issue arose because the fees provision of the anti-SLAPP law simply says that a court "may award" fees to a prevailing defendant, while specifying that a prevailing plaintiff who defeats a special motion can get an award of fees only if the filing of the anti-SLAPP motion was frivolous.  The superior court (whose denial of the Doe defendant's special motion to quash had been overturned by the court of appeals in 2014) denied fees, reasoning that it had broad discretion to award fees or not; indeed, its opinion seemed to suggest that only the plaintiff who had filed a frivolous claim over protected speech had filed a true "SLAPP" suit that could warrant an award of fees.  The court of appeals, however, concluded that the fee provision was modeled on many federal civil statutes whose fee provisions, although similarly permissive, have been construed as setting a norm of fee awards.

The decision should have a salutary effect by giving DC's anti-SLAPP law the same fiscal teeth as other strong anti-SLAPP laws around the country.  Plaintiffs may be deterred from filing lawsuits over speech on issues of public interest unless they are confident that they can present evidence in support of their claims at an early stage of the litigation.  By the same token, speakers will have an extra incentive to stand up for their rights, and lawyers will have a financial incentive to represent defendants whose speech appears to have been sufficiently justified that an anti-SLAPP motion is likely to be granted.  Lawyers handling such cases will have a reasonable expectation of being awarded their attorney fees, and thus being paid, even if the defendant cannot otherwise afford counsel.

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