Court of Appeals Holds that a Person Who Files and Prevails on a Special Motion to Quash Under D.C.’s Anti-SLAPP Act Is Presumptively Entitled to Attorney Fees

ByDouglas C. Melcher

On March 10, 2016, the District of Columbia Court of Appeals decided John Doe No. 1 v. Burke, No. 15-CV-690, slip op. (D.C. Mar. 10, 2016) in which it considered, inter alia, whether “an anonymous civil defendant who files and prevails on a special motion to quash a subpoena for identifying information” under the District of Columbia’s Anti-SLAPP Act (the “Act”), D.C. Code §§ 16-5501 to -5505, may be awarded attorney fees “without showing that the suit prompting the subpoena was frivolous or improperly motivated.” Burke, slip op. at 2.

By way of background, the Anti-SLAPP Act establishes procedures for a party to file a “special motion to quash” when his or her “personal identifying information is sought, pursuant to a discovery order, request, or subpoena, in connection with a claim arising from an act in furtherance of the right of advocacy on issues of public interest.” D.C. Code § 16-5503(a). The Act states that if the movant “makes a prima facie showing that the underlying claim arises from an act in furtherance of the right of advocacy on issues of public interest, then the motion shall be granted unless the party seeking his or her personal identifying information demonstrates that the underlying claim is likely to succeed on the merits.” Id. § 16-5503(b). The Act further states that “[t]he court may award a moving party who prevails, in whole or in part, . . . the costs of litigation, including reasonable attorney fees.” Id. § 16-5504(a).

Based upon a review of the Act’s language and legislative history and analogous legislation and statutes, Burke, slip op. at 7-20, the Court of Appeals held in a split decision that a defendant who files and prevails on a special motion to quash a subpoena may be awarded attorney fees “without showing that the suit prompting the subpoena was frivolous or improperly motivated.” Id. at 2. Furthermore, the Court of Appeals held that a successful movant is entitled to reasonable attorney fees “in the ordinary course — i.e., presumptively — unless special circumstances in the case make a fee award unjust.” Id.

Douglas C. Melcher

I am a licensed attorney with about twenty years of experience in the private practice of law. I focus my practice on advising and representing individuals, small businesses, and non-profits in civil litigation, including trial court proceedings, appeals, administrative hearings, mediation, and arbitration. I have written numerous articles for D.C. Law Blog and other publications, and am the author of Tort Claims and Defenses in the District of Columbia, which is a handbook for lawyers about civil claims for injury to persons, property, reputation, and commercial interests. Please feel free to contact me if you would like to inquire about assistance with a legal matter. I can be reached at dmelcher@melcherlaw.com or 202-427-5753. For further information about my background, click here.