eNotes: Liability – June 2023 – Washington, DC

SIGNIFICANT CASE SUMMARIES

Washington, DC Case Summary

Khan v. Orbis Bus. Intelligence Ltd.
District of Columbia Court of Appeals
No. 21-CV-0283, No. 21-CV-0440

Decided: April 13, 2023

In an Anti-SLAPP suit, a defendant is still entitled to litigation costs, including attorney’s fees, when successful on a special Motion to dismiss even if the plaintiff filed suit in good faith.

Background

In 2018, Plaintiffs brought a defamation suit against appellees over a dossier shared with politicians, government officials and the media, which concerned an election. At the trial court level, Defendants filed a special Motion to dismiss pursuant to the Anti-SLAPP statute and asserted the litigation hindered speech “in furtherance of the right of advocacy on issues of public interest.” The Lower Court granted the Motion. The Anti-SLAPP statute allows successful defendants to move for reasonable attorney’s fees and litigation costs. Defendants did so, to which Plaintiffs opposed. The Trial Judge rejected Plaintiffs’ arguments and awarded fees. Defendants then moved for an additional award of “fees on fees,” on which they were successful.

On appeal, Plaintiffs argued the defamation suit was not meritless or brought in bad faith; rather, the intention was to clear their names. Thus, Plaintiffs argued that a defendant is not entitled to attorney’s fees unless special circumstances exist that would make the award unjust.

Holding

The Appellate Court rejected Plaintiffs’ arguments and upheld the Lower Court’s ruling. To be successful in an Anti-SLAPP suit, the plaintiff must prove the defendant made the statement with actual malice, i.e., with knowledge that it was false or with reckless disregard of whether it was false or not. Here, despite Plaintiffs’ supporting materials, the Court found that when Plaintiffs had filed suit, they could not have reasonably believed they had evidence to support a finding of actual malice to justify bringing suit. Additionally, the Court held a meritless lawsuit, either brought in bad faith or with improper motive, is not a prerequisite to recovering attorney’s fees and costs. Thus, Plaintiffs’ showing of good faith did not meet the burden for special circumstances, and Defendants were entitled to the two awards.

Questions about this case can be directed to Madeline Creps at (202) 978-2049 or mcreps@tthlaw.com.