Khan v. Orbis Business Intelligence Ltd.

Notice: This opinion is subject to formal revision before publication in the

Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the

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volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 21-CV-0283 & 21-CV-0440

GERMAN KHAN, MIKHAIL FRIDMAN, and PETR AVEN,

APPELLANTS,

V.

ORBIS BUSINESS INTELLIGENCE LIMITED and CHRISTOPHER STEELE,

APPELLEES.

Appeals from the Superior Court

of the District of Columbia

(2018-CA-002667-B)

(Hon. Anthony C. Epstein, Trial Judge)

(Argued September 14, 2022 Decided April 13, 2023)

Alan S. Lewis, with whom Kim Sperduto was on the brief, for appellants.

Christina Hull Eikhoff, with whom Kristin Ramsay and Kelley C. Barnaby

were on the brief, for appellees.

Before BECKWITH and ALIKHAN, Associate Judges, and GLICKMAN, * Senior

Judge.

*

Judge Glickman was an Associate Judge at the time of argument.

2

GLICKMAN, Senior Judge: These consolidated appeals present challenges to

awards of attorney fees and other litigation costs to prevailing defendants under the

Anti-Strategic Lawsuits Against Public Participation (“Anti-SLAPP”) Act. 1

“Broadly speaking, the term SLAPP is used to refer to ‘an action filed by one side

of a political or public policy debate aimed to punish or prevent opposing points of

view.’” 2 The Council enacted the Anti-SLAPP Act “to protect targets of such

meritless lawsuits.” 3 The Act empowers defendants to defeat SLAPPs at their

inception, expeditiously and at minimal expense, by means of a “special motion to

dismiss” the lawsuit and provisions for awarding successful defendants their

attorney fees and costs. The Superior Court made two such awards in the present

case after this court, in a previous appeal, affirmed its grant of the defendants’ special

motion to dismiss. We now affirm the awards, which compensated the defendants

for the expenses they incurred in defeating that lawsuit and in litigating their motion

to recover their costs of defense.

1

D.C. Code §§ 16-5501 to -5505.

2

Am. Stud. Ass’n v. Bronner, 259 A.3d 728, 733 (D.C. 2021) (citation

omitted).

3

Competitive Enter. Inst. v. Mann, 150 A.3d 1213, 1226 (D.C. 2016).

3

I. Background

In 2018, appellants German Khan, Mikhail Fridman, and Petr Aven sued

appellees Christopher Steele and his company Orbis Business Intelligence Limited

(“Orbis”) in Superior Court for defamation. The allegedly false and defamatory

statements about them were contained in the so-called “Steele Dossier,” a collection

of opposition research reports prepared by Steele for use in connection with the 2016

United States Presidential campaign. The Dossier was shared with politicians,

government officials, and the media.

The statements at issue in the defamation action recounted what an unnamed

“[t]op level Russian government official” told Steele he had heard from an

unidentified “trusted compatriot”: among other things, that Fridman, Aven, and the

Alfa Group (appellants’ Russian business conglomerate) had a longstanding

relationship with Russian President Vladimir Putin; that they and Putin had

exchanged “[s]ignificant favours” of a “political” and “business/legal” nature; that a

former Alfa Group executive had acted as their intermediary “to deliver large

amounts of illicit cash” to Putin in the 1990s (when Putin was deputy mayor of St.

Petersburg); and that Alfa “held ‘kompromat’” on President Putin and “his corrupt

4

business activities from the 1990s,” but Putin was able to make Fridman and Aven

“do his political bidding.”

Steele and Orbis filed a special motion to dismiss the defamation complaint

pursuant to § 16-5502 of the Anti-SLAPP Act. As such a motion requires, they made

what the Superior Court found to be a “prima facie showing” that appellants’ claim

of defamation arose from “an act in furtherance of the right of advocacy on issues of

public interest.” 4 Upon such a showing, the court must grant the special motion to

dismiss “unless the responding party demonstrates that the claim is likely to succeed

on the merits.” 5 As we have explained, the question is one of legal sufficiency:

[I]n considering a special motion to dismiss, the court

evaluates the likely success of the claim by asking whether

a jury properly instructed on the applicable legal and

constitutional standards could reasonably find that the

claim is supported in light of the evidence that has been

produced or proffered in connection with the motion. This

standard achieves the Anti-SLAPP Act’s goal of weeding

out meritless litigation by ensuring early judicial review of

the legal sufficiency of the evidence, consistent with First

4

D.C. Code § 16-5502(b); see also id. § 16-5501(1) (defining “[a]ct in

furtherance of the right of advocacy on issues of public interest”); § 16-5501(3)

(defining “[i]ssue of public interest”).

5

Id. § 16-5502(b). If the court grants the motion, “dismissal shall be with

prejudice.” Id. § 16-5502(d).

5

Amendment principles, while preserving the claimant’s

constitutional right to a jury trial.[6]

The trial court concluded that appellants failed to make that demonstration in

this case because they were unable to proffer clear and convincing evidence that

Steele acted with actual malice, i.e., with knowledge that his statements were false

or with reckless disregard for whether they were false or not. 7 On appeal, this court

affirmed the Superior Court’s rulings and upheld its grant of the special motion to

dismiss. 8 “Even at the special motion to dismiss stage,” we held, “appellants must

6

Mann, 150 A.3d at 1232-33; see also id. at 1236 (concluding that “the

standard to be employed by the court in evaluating whether a claim is likely to

succeed may result in dismissal only if the court can conclude that the claimant could

not prevail as a matter of law”).

7

The court held appellants to heightened constitutional proof standards (clear

and convincing proof of actual malice) because it found them to be limited-purpose

public figures vis-à-vis the public controversy “relating to Russian oligarchs’

involvement with the Russian government and its activities and relations around the

world, including the United States,” to which the statements at issue related. See id.

at 1236 (“The precise question the court must ask [in ruling on a special motion to

dismiss] is whether a jury properly instructed on the law, including any applicable

heightened fault and proof requirements, could reasonably find for the claimant on

the evidence presented.”).

8

Fridman v. Orbis Bus. Intel. Ltd., 229 A.3d 494, 513 (D.C. 2020), cert.

denied, 141 S. Ct. 1074 (2021). We refer the reader to our opinion in this case for a

fuller account and discussion of appellants’ defamation claim, the special motion to

dismiss it, and the Superior Court’s rulings on that motion.

6

proffer evidence capable of showing [actual malice] by the clear and convincing

standard.” 9

Having prevailed on that motion, Steele and Orbis moved pursuant to

§ 16-5504(a) of the Anti-SLAPP Act for an award of their reasonable attorney fees

and other costs of the litigation. For convenience, we shall refer to the award in this

opinion as a “fee award,” and to § 16-5504(a) as a “fee-shifting” statute. Appellants

did not dispute the reasonableness of the expenses that appellees sought to recover,

but they opposed the motion on three other grounds.

First, appellants argued that special circumstances made a fee award unjust

because their defamation lawsuit was not a “classic meritless” SLAPP brought in

bad faith; their “goal in bringing the instant action,” they said, “was not to prevent

expression of an opposing point of view, but rather, was to clear their names” after

they had been publicly maligned. Second, appellants argued that the fee-shifting

provision in § 16-5504(a) is unconstitutional, on its face and as applied to them,

because it imposes an undue burden on the First Amendment right to petition the

government for a redress of grievances. Third, appellants contended that the

9

Id. at 509.

7

application of the Anti-SLAPP Act’s special motion to dismiss and fee-shifting

provisions in their case violated the requirement in D.C. Code § 11-946 that the

Superior Court “conduct its business according to the Federal Rules of Civil

Procedure” unless this court has approved a modification of those Rules.

The trial judge, Associate Judge Epstein, rejected each of appellants’

arguments, accepted the reasonableness of appellees’ request, and issued an order

on April 2, 2021, awarding appellees their attorney fees and other costs in the total

sum of $440,538.58.

Appellees then moved for an additional award of $29,807.50 for the fees and

costs they had incurred to obtain the April 2 award, which is commonly referred to

as an award of “fees on fees.” Appellants urged the court to deny the additional

award, arguing that it would unjustly penalize them for raising what they called

“three issues of first impression” in their opposition to the April 2 award. The judge

found this objection unpersuasive and granted appellees’ motion.

In the present appeals, appellants ask us to overturn each of the Superior

Court’s awards. They present us with essentially the same four arguments that they

made in the proceedings below. For the reasons we now proceed to discuss, we are

not persuaded by those arguments, and we affirm the two orders on appeal.

8

II. Appellees’ Entitlement to Reasonable Attorney Fees

and Costs under D.C. Code § 16-5504(a)

Section 16-5504(a) of the Anti-SLAPP Act provides that “[t]he court may

award a moving party who prevails, in whole or in part, on a motion brought under

§ 16-5502 . . . the costs of litigation, including reasonable attorney fees.” In Doe v.

Burke, we construed this provision to mean that a successful movant on a special

motion to dismiss “is entitled to reasonable attorney’s fees in the ordinary course —

i.e., presumptively — unless special circumstances in the case make a fee award

unjust.” 10

In opposition to appellees’ fee motion, appellants argued that a fee award was

unwarranted because their defamation lawsuit was not a classic, meritless SLAPP

brought in bad faith. To establish that they had filed it in good faith to protect their

reputations, appellants submitted documentary materials supporting their claim that

Steele had published damaging falsehoods about their relationship with Putin

without exercising reasonable care to confirm that the allegations were credible.

Prominent in the materials appellants submitted were records and the decision in a

Doe v. Burke, 133 A.3d 569, 571 (D.C. 2016); see also id. at 572 n.2 (the

10

“same standards” apply to each type of special motion).

9

lawsuit that appellants had brought against Orbis in the United Kingdom for

“correction of the record and other remedies” available under the U.K.’s Data

Protection Act 1998, 11 and reports issued by the United States Office of the Inspector

General and the Senate Judiciary Committee. As pertinent here, the trial court in the

U.K. lawsuit (the High Court of Justice, Queen’s Bench Division) found that the

allegations in the Steele Dossier about illicit payments to Putin through an

intermediary were proven to be false, and that Steele had failed to take reasonable

steps to verify those allegations before he included them in his report. 12 The U.S.

governmental reports more generally criticized Steele’s methodology and the

sources he had relied on in producing the Dossier. Appellants contended that their

good-faith assertion of a substantiated claim of defamation constituted a special

circumstance that made a fee award unjust.

11

Appellants sued Orbis and claimed that its publication of the Steele Dossier

breached duties owed under the U.K.’s Data Protection Act because the Dossier

contained false information of a sensitive personal nature relating to appellants, and

because the information was processed and disclosed in ways noncompliant with the

Data Protection Act.

12

Aven v. Orbis Bus. Intel. Ltd. [2020] EWHC (QB) 1812, [167], [185] (Eng.).

The court found that Steele did take reasonable steps to verify the other information

he included in the Steele Dossier concerning appellants’ relationship with Putin.

10

The trial judge disagreed. “Unfortunately for plaintiffs,” the judge said, this

court in Doe v. Burke rejected the argument that special circumstances exist if the

lawsuit is not “the classic meritless lawsuit that [the] Anti-SLAPP Act was designed

to punish.” The judge found that the materials appellants submitted in opposition to

the fee motion still did not furnish substantial proof of actual malice and therefore

fell short of justifying their filing suit against Steele and Orbis. 13

The judge did not consider “plaintiffs’ motivation or evidence of defendants’

negligence . . . [to be] irrelevant to the ‘special circumstances’ analysis.” Rather, he

explained,

[the court] exercises its discretion to conclude that the

circumstances cited by plaintiffs are not sufficient to

overcome the presumption that defendants are entitled to

reasonable litigation costs for their successful special

motion to dismiss: when plaintiffs filed this case, it was,

13

Judge Epstein specifically found that:

[t]he [United Kingdom] court decision, the Inspector

General report, and the Senate Committee report do not

contain clear and convincing evidence that defendants

acted with actual malice . . . . The issue is not “what more

a reasonable reporter might have done in the

circumstances” but whether “the defendant in fact

entertained serious doubts as to the truth of his

publication.”

(quoting OAO Alfa Bank v. Ctr. for Pub. Integrity, 387 F. Supp. 2d 20, 53 (D.D.C.

2005) (quoting St. Amant v. Thompson, 390 U.S. 727, 731 (1968))).

11

at a minimum, predictable that the Court would require

them to prove actual malice; plaintiffs did not, and still do

not, have substantial evidence of actual malice;

defendants’ advocacy on issues of public interest is

protected by the First Amendment; granting the special

motion to dismiss was not a particularly close call;

plaintiffs’ aggressive litigation tactics forced defendants to

incur very substantial costs to defend themselves against

allegations that plaintiffs could not prove; and plaintiffs do

not claim that they cannot afford to pay defendants’

litigation costs.

We review the judge’s decision for an abuse of discretion. “‘This court

generally defers to the broad discretion of the trial judge in the calculation and award

of attorney’s fees.’ ‘Therefore, it requires a very strong showing of abuse of

discretion to set aside the decision of the trial court [regarding the awarding of

attorney’s fees].’” 14 We conclude that appellants have not made that showing here.

Judge Epstein adhered to this court’s holding in Doe v. Burke that a fee award

to successful movants under § 16-5504(a) is presumptively mandatory unless special

circumstances would make the award unjust. The successful movant need not show

the lawsuit was “frivolous or improperly motivated” to be entitled to an award. 15

14

Pellerin v. 1915 16th St., N.W., Co-op. Ass’n, Inc., 900 A.2d 683, 690 (D.C.

2006) (alteration in original) (first quoting District of Columbia v. Hunt, 520 A.2d

300, 304 (D.C. 1987); and then quoting Maybin v. Stewart, 885 A.2d 284, 288 (D.C.

2005)).

15

Doe, 133 A.3d at 571; see also id. at 573-74.

12

The D.C. Council authorized fee-shifting in the Anti-SLAPP Act even absent such

a showing based on its concern that the prospect of incurring substantial

unreimbursed costs to defend free speech would deter the exercise of First

Amendment rights. 16 The burden to show the existence of special circumstances

sufficient to deny an award was on appellants’ shoulders.

Appellants argue that Judge Epstein misapprehended the “special

circumstances” exception. They understand him to have ruled, erroneously, that

they needed to present sufficient proof to defeat appellees’ special motion to dismiss

in order to avoid being required to pay appellees’ attorney fees. That is not how we

understand the judge’s ruling, however. His point was a different one: that

appellants could not reasonably have believed they had the evidence they needed to

justify filing their defamation action, given that they lacked substantial evidence of

actual malice. That was a valid and telling point, in our view, because the existence

of a good faith belief in the merits of their lawsuit was the “special circumstance”

on which appellants relied.

16

See id. at 575.

13

Judge Epstein’s “special circumstances” analysis took into account the

evidence of appellees’ negligence and appellants’ motivation to protect their

reputations. That evidence may (or may not) have been relevant, but the judge

correctly did not treat it as sufficient or dispositive. We held in Doe that the

presumption in favor of an award of attorney fees applies even when the lawsuit is

not a “classic” SLAPP suit that “has been determined to be frivolous or intended to

stifle speech by causing undue litigation costs.” 17 Doe characterized the distinction

between “classic” SLAPP suits and others as “illusory” and explained that a showing

of bad faith or improper motive is not a prerequisite to the recovery of attorney

fees. 18 A showing of good faith and proper motive therefore falls short of meeting

a plaintiff’s burden to show special circumstances warranting the denial of a fee

award to a defendant whose special motion to dismiss has been granted. 19

17

Id. at 573.

18

Id. at 574.

19

In Doe, this court based the special circumstances exception on case law

governing the award of attorney fees in litigation under the federal Civil Rights Acts

pursuant to 42 U.S.C. § 1988(b). See id. at 577 (stating that “a prevailing plaintiff

under Title II of the Civil Rights Act of 1964 ‘should ordinarily recover an attorney’s

fee unless special circumstances would render such an award unjust’” (quoting

Newman v. Piggie Park Enters., 390 U.S. 400, 402 (1968))). In practice, very few

circumstances have been found to constitute “special circumstances” in civil rights

cases. The plaintiff’s good faith is not one of them. See, e.g., Turner v. D.C. Bd. of

14

Appellants take issue with some of the other factors the judge considered,

perhaps out of an abundance of caution, in determining that special circumstances

were absent in this case — not only appellants’ critical lack of substantial evidence

of actual malice, but also that granting the special motion to dismiss was not a “close

call”; that appellants’ “aggressive litigation tactics” forced appellees to incur “very

substantial costs to defend themselves against allegations that [appellants] could not

prove”; and that appellants possessed the ability to pay a fee award. But while those

additional factors may have had little or no bearing on whether special circumstances

made a fee award unjust, the judge did not abuse his discretion in considering them

and concluding that they did not support such a determination; they merely

Elections & Ethics, 354 F.3d 890, 897 (D.C. Cir. 2004) (explaining that “because an

award of attorney’s fees under § 1988 is not meant as a punishment for bad

defendants who resist plaintiffs’ claims in bad faith, but is meant to compensate civil

rights attorneys who bring civil rights cases and win them,” the defendant’s lack of

“fault” or good faith “is not a special circumstance warranting denial of a fully

compensatory fee” (citations, internal quotation marks, and brackets omitted)); De

Jesus Nazario v. Morris Rodriguez, 554 F.3d 196, 201 (1st Cir. 2009) (stating that

“a defendant’s good faith is ‘by itself not a special circumstance justifying a denial

of attorney’s fees’” and neither is “a defendant’s ‘good faith reliance even on settled

law’” (citations omitted)); Lampher v. Zagel, 755 F.2d 99, 104 (7th Cir. 1985)

(holding that defendants’ “good faith enforcement” of the challenged statute did not

constitute a special circumstance because “the good faith of the defendant[s] is

irrelevant because ‘the key issue is the provocative role of the plaintiffs’ lawsuit, not

the motivation of the defendant’” (alteration in original) (citation omitted)).

15

underscored appellants’ failure to show the existence of any special circumstances. 20

We see no indication that the judge considered those factors inappropriately. 21

Although appellants did not dispute the reasonableness of the fees and other

costs incurred by appellees, Judge Epstein reviewed appellees’ submission and

discerned that defense counsel’s work was “useful and necessary for the successful

result that they achieved.” 22 Appellants do not challenge that finding on appeal.

20

We note that courts have held that a losing civil rights defendant’s inability

to pay the award, and the closeness of the case, are not special circumstances

justifying the denial of attorney fees to a prevailing plaintiff. See, e.g., Inmates of

Allegheny Cnty. Jail v. Pierce, 716 F.2d 177, 179-80 (3d Cir. 1983) (recognizing

that a “losing party’s financial ability to pay is not a ‘special circumstance’” under

42 U.S.C. § 1988(b)); Cleveland v. Ibrahim, 121 F. App’x 88, 91 (6th Cir. 2005)

(concluding that “closeness or difficulty of a case,” in a civil rights action under 42

U.S.C. § 3613(c)(2), does not constitute a “‘special circumstance’ which can defeat

an attorney’s fee award altogether”).

21

Appellants object to the judge’s characterization of their litigation tactics as

“aggressive.” We do not perceive that comment as pejorative or improper. (Lawyers

usually take such descriptions as compliments.) The judge merely mentioned it as

the reason appellees’ defense costs were “very substantial.” Appellants do not

dispute the reasonableness of those costs.

22

See Vining v. District of Columbia, 198 A.3d 738, 755 (D.C. 2018) (“The

central question [in evaluating the reasonableness of a fee request] is whether the

work was useful and necessary in advancing the litigation to its successful

conclusion.” (citation and alteration omitted)).

16

We are satisfied that Judge Epstein exercised his discretion appropriately and

did not err in determining that the Anti-SLAPP Act entitled appellees to their

requested award of attorney fees and other costs of the litigation. Before we discuss

the subsequent award of “fees on fees,” we think it best to address appellants’

objections to the constitutionality of the awards and the Superior Court’s statutory

authority to make them under D.C. Code § 11-946, to which we now turn.

III. The Constitutionality of D.C. Code § 16-5504(a)

Appellants contend that D.C. Code § 16-5504(a), as construed in Doe, is

unconstitutional on its face and as applied to them in this case. They argue that the

Anti-SLAPP Act’s authorization of fee awards to prevailing defendants places an

undue burden on plaintiffs’ First Amendment right “to petition the Government for

a redress of grievances.” 23 Appellants assert that “unless a lawsuit was frivolous or

brought in bad faith, it is deserving of First Amendment protection” and no fees

should be awarded to prevailing defendants.

23

U.S. Const. amend I.

17

We review a challenge to the constitutionality of a statute de novo. 24 For the

following reasons, we reject appellants’ argument.

There is no question that “filing a complaint in court is a form of petitioning

activity,” 25 and that “the Petition Clause protects the right of individuals to appeal to

courts and other forums established by the government for resolution of legal

disputes.” 26 However, “baseless litigation is not immunized by the First Amendment

right to petition.” 27 “The right to petition protected by the First Amendment does

not include the right to maintain groundless proceedings.” 28 We understand a

lawsuit to be “objectively baseless” if a “reasonable litigant could [not] realistically

expect success on the merits.” 29

24

In re Warner, 905 A.2d 233, 237 (D.C. 2006).

25

McDonald v. Smith, 472 U.S. 479, 484 (1985).

26

Borough of Duryea v. Guarnieri, 564 U.S. 379, 387 (2011).

27

McDonald, 472 U.S. at 484 (quoting Bill Johnson’s Rests., Inc. v. NLRB,

461 U.S. 731, 743 (1983)).

28

Larsen v. Comm’r, 765 F.2d 939, 941 (9th Cir. 1985).

29

Pro. Real Estate Invs., Inc. v. Columbia Pictures Indus., 508 U.S. 49, 60

(1993). Thus, the class of “objectively baseless” lawsuits is not strictly limited to

suits that are frivolous or in bad faith. Appellants have cited no case holding that

only frivolous or bad faith suits are outside the protection of the Petition Clause.

18

Just such a determination is the necessary predicate for a fee award to a

prevailing defendant under § 16-5504(a), and it was the predicate for the award in

this case. Section 16-5504(a) authorizes fee awards to defendants only when the

court has determined, in granting a special motion to dismiss, that the plaintiff is

unable to show the claim is likely to succeed on the merits. 30 The standard applied

to evaluate the likelihood of success is designed to “weed[] out meritless litigation”

and effectively requires a finding of objective baselessness, inasmuch as the court

may grant the special motion only if it concludes that the claimant could not prevail

as a matter of law. 31 In the present case, the court dismissed appellants’ defamation

claim because they presented no evidence “capable of showing by the clear and

Even in Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), the case on

which appellants have relied, the Court held that, in an action under Title VII of the

Civil Rights Act of 1964, “a plaintiff should not be assessed his opponent’s

attorney’s fees unless a court finds that his claim was frivolous, unreasonable, or

groundless, or that the plaintiff continued to litigate after it clearly became so,” or

that the plaintiff “brought or continued such a claim in bad faith,” id. at 422 (first

emphasis added). (We note, moreover, that this was not a constitutional holding, but

rather was one specific to the statute at issue.)

30

See D.C. Code § 16-5502(b).

31

Competitive Enter. Inst. v. Mann, 150 A.3d 1213, 1232-33, 1236

(D.C. 2016).

19

convincing standard that appellees acted with actual malice.” 32 A reasonable litigant

cannot realistically expect success on the merits without having a likelihood of

proving an essential component of the claim.

Section 16-5504(a) cannot be said to infringe the Petition Clause, on its face

or as applied, merely on account of the burden it imposes on the assertion of claims

that are outside the protection of the Petition Clause. Nor does a fee-shifting statute

like § 16-5504(a) deprive any would-be plaintiff of the right to file suit or erect a

barrier (such as a filing fee or other precondition) that might prevent a claimant from

filing as a practical matter. 33 Appellants argue, however, that the risk of fee awards

to prevailing defendants unduly burdens the right to petition by discouraging the

assertion of some claims that are not necessarily baseless. The fee-shifting statute

did not discourage appellants from asserting any claim in this case. We therefore do

not see how appellants can argue that the statute was unconstitutional in its

32

Fridman v. Orbis Bus. Intel. Ltd., 229 A.3d 494, 511 (D.C. 2020).

33

Cf. Am. Bus Ass’n v. Rogoff, 649 F.3d 734, 741 (D.C. Cir. 2011) (explaining

that while “government interfere[nce] with the plaintiffs’ ability to express their

views to a decisionmaker” may burden the Petition Clause, a circumstance where

the government “instead interfered with the decisionmaker’s ability to grant the

remedy the plaintiffs seek” does not because “[n]o case holds that [the latter] kind

of interference — whether with rights or remedies — abridges the Petition Clause.”).

20

application to them. Nonetheless, appellants may assert a facial challenge based on

the statute’s chilling effect on other defamation plaintiffs’ First Amendment rights. 34

Just as a statute awarding fees to a successful plaintiff may “encourage the

bringing of low-probability cases,” we suppose that a statute awarding fees to a

successful defendant may “discourage litigation with a low chance of success.” 35

(By the same token, we suppose fee-shifting statutes also may affect a defendant’s

calculus in deciding whether to assert a dubious defense.) But even if a fee-shifting

provision can be said to “burden” the exercise of the right to petition by discouraging

plaintiffs from asserting claims of questionable merit, that does not mean the burden

is undue or so interferes with exercise of the right as to be unconstitutional.

Although the contours of the Petition Clause are not clearly defined, some

encroachment on the right to petition — particularly when regulations do not directly

34

See, e.g., Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973) (recognizing

that litigants may raise First Amendment challenges based on the argument that “the

statute’s very existence may cause others not before the court to refrain from

constitutionally protected speech or expression”); Grogan v. United States, 271 A.3d

196, 210 (D.C. 2022) (discussing the same in the context of First Amendment

overbreadth challenges).

35

Premier Elec. Constr. Co. v. Nat’l Elec. Contractors Ass’n, Inc., 814 F.2d

358, 373 (7th Cir. 1987).

21

impair the right to access the court — is permissible if it effectuates important

interests of the government. 36

The Council unquestionably had significant reasons for enacting the Anti-

SLAPP Act’s fee-shifting provision that are consistent with longstanding and

widespread practices throughout the United States. Discouraging the filing of

meritless lawsuits, and requiring those who do file them to compensate defendants

for the costs such lawsuits unjustifiably impose on them, are reasonable and

legitimate policy goals. Innumerable other fee-shifting statutes have been enacted

to achieve those very goals by requiring losing parties, including losing plaintiffs, to

36

See Borough of Duryea v. Guarnieri, 564 U.S. 379, 389-92 (2011)

(adopting standards from the Speech Clause context and weighing the “substantial

government interests” of restraining speech of government employees against

employees’ right to litigate all grievances against their employer); McDonald v.

Smith, 472 U.S. 479, 484-85 (1985) (rejecting the proposition that the right to

petition is absolute and applying the actual malice standard to statements made in

letters to government officials); Octane Fitness, LLC v. ICON Health & Fitness,

Inc., 572 U.S. 545, 556 (2014) (recognizing that the threat of antitrust liability “and

the attendant treble damages . . . far more significantly chills the exercise of the right

to petition than does the mere shifting of attorney’s fees” in patent suits); BE & K

Const. Co. v. NLRB, 536 U.S. 516, 530 (2002) (suggesting that “one might assume

that any concerns related to the right to petition must be greater when enjoining

ongoing litigation than when penalizing completed litigation”); see also Carol Rice

Andrews, A Right of Access to Court Under the Petition Clause of the First

Amendment: Defining the Right, 60 Ohio St. L.J. 557, 671-73, 678-79 (1999).

22

pay the legal fees incurred by the prevailing parties, including prevailing

defendants. 37 There is no serious question about the constitutionality of such

statutes; indeed, the Seventh Circuit has described “the proposition that the [F]irst

[A]mendment, or any other part of the Constitution, prohibits or even has anything

to say about fee-shifting statutes in litigation” as “too farfetched to require extended

analysis.” 38 Rather, as the Supreme Court has said, “it is apparent that the

circumstances under which attorneys’ fees are to be awarded” in litigation under

federal law “and the range of discretion of the courts in making those awards are

See, e.g., Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 252-54

37

(2010) (describing the variety of “prevailing party” fee-shifting provisions that the

Supreme Court has considered).

38

Premier Elec. Const., 814 F.2d at 373 (footnote omitted). The court went

on to explain:

Fee shifting requires the party that creates the costs to bear

them. This is no more a violation of the [F]irst

[A]mendment than is a requirement that a person who

wants to publish a newspaper pay for the ink, the paper,

and the press. Similarly, whoever wants to read the New

York Times must buy a copy. The exercise of rights may

be costly, and the [F]irst [A]mendment does not prevent

the government from requiring a person to pay the costs

incurred in exercising a right.

Id. (citations and footnote omitted).

23

matters for Congress to determine” 39; and it is for state legislatures to determine

those matters in litigation under state law.

The Anti-SLAPP Act’s fee-shifting provision also serves an important

purpose beyond simply compensating defendants for litigation expenses they should

not have had to bear. The provision furthers the Act’s fundamental goal of protecting

“the right to free speech guaranteed by the First Amendment . . . by shielding

defendants from meritless litigation that might chill advocacy on issues of public

interest.” 40 Legislatures across the country have enacted Anti-SLAPP statutes based

on documented evidence that SLAPPs endanger First Amendment rights. 41 In

contrast, we are aware of no evidence supporting appellants’ hypothesis that Anti-

SLAPP statutes discourage the filing of meritorious claims — especially where, as

39

Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 262 (1975).

40

Competitive Enter. Inst. v. Mann, 150 A.3d 1213, 1231 (D.C. 2016).

41

See George W. Pring, SLAPPs: Strategic Lawsuits against Public

Participation, 7 Pace Env’t. L. Rev. 3, 3-5 (1989) (describing data showing that

SLAPP “cases are not isolated or localized aberrations, but are found in every state,

every government level, every type of political action, and every public issue of

consequence,” and they “strike at a wide variety of traditional American political

activities”); Anti-SLAPP Legal Guide, Reporters Committee for Freedom of the

Press, https://www.rcfp.org/anti-slapp-legal-guide/; https://perma.cc/5WVF-9RU3

(last visited Apr. 4, 2023) (“In recent years, several states have adopted or amended

their anti-SLAPP laws. As of October 2022, 32 states and the District of Columbia

have anti-SLAPP laws . . . .”).

24

is the case here, the Anti-SLAPP statute’s fee-shifting provision leaves some

discretion to the trial court not to award attorney fees. As we have noted, the

District’s Anti-SLAPP Act did not discourage appellants themselves.

As fee-shifting provisions go, §16-5504(a) is unexceptional and, in fact, is

comparatively modest, as it does not provide for awards to defendants in all cases in

which they prevail, but only in those cases in which the court (in granting a special

motion to dismiss) finds that the plaintiffs’ claims were unsubstantiated and legally

insufficient. In addition, the Anti-SLAPP Act provides for the court to determine a

defendant’s entitlement to a fee award at an early stage of the litigation, so as to

reduce the recoverable expenses that the defendant needs to incur in a SLAPP. 42

Thus the award allowed by § 16-5504(a) is significantly lower than it would be if

made after the defendant had prevailed at a later stage, e.g., after a trial. 43

A special motion to dismiss must be filed within 45 days after service of the

42

claim. D.C. Code § 16-5502(a).

43

The Anti-SLAPP Act does not provide for fee awards to defendants who

prevail at later stages of a lawsuit; a defendant who prevails after trial would be

eligible for a fee award only upon a showing of bad faith or in unusual

circumstances. See Doe v. Burke, 133 A.3d 569, 584 (D.C. 2016) (McLeese, J.,

concurring in part and dissenting in part).

25

In light of the foregoing considerations, we readily conclude that § 16-5504(a)

imposes no undue burden on the First Amendment right to petition for redress of

grievances. We hold that the statute is constitutional on its face and was

constitutionally applied to appellants. 44

44

We note that courts in other jurisdictions, including California and Texas

where fee-shifting is required for successful movants of the motion to dismiss, see

Cal. Civ. Proc. Code § 425.16(c)(1); Tex. Civ. Prac. & Rem. § 27.009(a)(1), have

rejected constitutional challenges to similar fee-shifting provisions in their state

Anti-SLAPP statutes. See, e.g., Equilon Enters. v. Consumer Cause, Inc., 52 P.3d

685, 689-92 (Cal. 2002) (holding that fee shifting under the Anti-SLAPP statute

without a showing of the plaintiff’s “intent to chill” free speech did not violate the

Constitution or “inappropriately punish plaintiffs,” especially given that a plaintiff

is burdened by payment of attorney fees “only when the plaintiff burdens free speech

with an unsubstantiated claim”); Bernardo v. Planned Parenthood Fed’n of Am., 9

Cal. Rptr. 3d 197, 229-30 (Cal. Ct. App. 2004) (concluding that fee-shifting

provision did not violate the right to petition and explaining that “[plaintiffs’]

arguments are based on the unsupported premise that the anti-SLAPP statute’s fee

shifting provisions ‘penalize’ or impose ‘liability’ on plaintiffs whose complaints

are dismissed”); Vargas v. City of Salinas, 134 Cal. Rptr. 3d 244, 260 (Cal. Ct. App.

2011) (“If the [fee-shifting provision] chills legitimate petitioning activity, it is

merely incidental to and outweighed by the significant governmental interests the

statute is designed to protect.”); Gensetix, Inc. v. Baylor Coll. of Med., 616 S.W.3d

630, 650 (Tex. Ct. App. 2020) (recognizing that the Anti-SLAPP statute’s fee-

shifting provision is constitutional and does “not create an impermissible pay-to-

play barrier to the courts; the awards shift litigation costs after resolution of a

claim”); Day v. Farrell, No. 97-2722, 2000 WL 33159180, at *2-3 (R.I. Super. Ct.

May 15, 2000) (concluding that the Anti-SLAPP statute’s fee-shifting provision

does not violate the Constitution because it acts as a “reasonable limit[] or burden[]”

on the right to access the courts, and “the provision fosters the Legislature’s express

objective of disfavoring SLAPP suits” and resolving such litigation “quickly with

26

IV. Compliance with D.C. Code § 11-946

D.C. Code § 11-946 provides that “[t]he Superior Court shall conduct its

business according to the Federal Rules of Civil Procedure” unless this court has

approved a modification of those Rules. 45 Appellants invoked this provision for the

first time after this court upheld the Superior Court’s judgment granting the special

motion to dismiss appellants’ defamation action. They then argued that the Anti-

SLAPP Act’s special motion to dismiss and fee-shifting provisions modify the

Federal Rules of Civil Procedure dealing with motions to dismiss or for summary

judgment and with fee awards (which are incorporated in the Superior Court’s rules),

minimum cost to citizens who have participated in matters of public concern”

(citation omitted)).

45

Section 11-946 reads as follows:

[t]he Superior Court shall conduct its business according

to the Federal Rules of Civil Procedure . . . unless it

prescribes or adopts rules which modify those Rules.

Rules which modify the Federal Rules shall be submitted

for the approval of the District of Columbia Court of

Appeals, and they shall not take effect until approved by

that court. The Superior Court may adopt and enforce

other rules as it may deem necessary without the approval

of the District of Columbia Court of Appeals if such rules

do not modify the Federal Rules.

27

and that the Superior Court was not authorized to apply those modifications because

this court had not (and still has not) approved them.

Judge Epstein rejected appellants’ arguments. He held that appellants’

objection to the special motion to dismiss procedure based on § 11-946 was

untimely, since appellants had not raised it when they had litigated the propriety of

that motion and its application to them. And the judge held that the fee-shifting

provision of the Anti-SLAPP Act provides a substantive remedy and does not

modify the procedure under the Federal (and Superior Court) Rules of Civil

Procedure for requesting litigation costs and fees. The judge’s rulings raise purely

legal questions of statutory interpretation and procedure, as to which our review is

de novo.

We affirm the denial of appellants’ objections essentially for the reasons

Judge Epstein stated. First, although the argument that the Anti-SLAPP Act’s

special motion to dismiss procedure modified the applicable Federal Rules of Civil

Procedure was available to appellants, 46 they did not make that argument when they

46

In Abbas v. Foreign Policy Group, LLC, 783 F.3d 1328, 1334 (D.C. Cir.

2015), the Circuit Court held that a federal court exercising diversity jurisdiction

over a complaint under the District of Columbia Anti-SLAPP Act must apply the

28

opposed the special motion in Superior Court or when they took their appeal from

the grant of the special motion to this court. Appellants thereby forfeited the

argument. 47 We see no reason to excuse the forfeiture, particularly since it would

standards for granting pre-trial judgment to defendants set forth in Federal Rules of

Civil Procedure 12 and 56 instead of the Act’s special motion to dismiss provision,

because that provision conflicts with those Rules “by setting up an additional hurdle

a plaintiff must jump over to get to trial”). And in Mann, this court “agree[d] with

Abbas that the special motion to dismiss is different from summary judgment [under

Federal Rule 56] in that it imposes the burden on plaintiffs and requires the court to

consider the legal sufficiency of the evidence presented before discovery is

completed.” 150 A.3d at 1238 n.32.

47

See Thoubboron v. Ford Motor Co., 809 A.2d 1204, 1215 (D.C. 2002) (“[I]t

is a general principle of appellate practice that ‘where an argument could have been

raised on an initial appeal, it is inappropriate to consider the argument on a second

appeal following remand.’” (quoting Hartman v. Duffey, 88 F.3d 1232, 1236 (D.C.

Cir. 1996))); Fleming v. Carroll Publ’g Co., 621 A.2d 829, 837 (D.C. 1993) (same);

Laffey v. Nw. Airlines, Inc., 740 F.2d 1071, 1089-90 (D.C. Cir. 1984) (“Adherence

to the rule that a party waives a ‘contention that could have been but was not raised

on a prior appeal’ is, of course, necessary to the orderly conduct of litigation. Failure

to follow this rule would lead to the bizarre result, as stated admirably by Judge

Friendly, ‘that a party who has chosen not to argue a point on a first appeal should

stand better as regards the law of the case than one who had argued and lost.’”

(brackets omitted) (first quoting Munoz v. Cnty. of Imperial, 667 F.2d 811, 817 (9th

Cir. 1982); and then quoting Fogel v. Chestnutt, 668 F.2d 100, 109 (2d Cir. 1981))).

It makes no difference that this court simply affirmed the Superior Court’s judgment

granting the special motion to dismiss, see Fridman v. Orbis Bus. Intel. Ltd., 229

A.3d 494, 513 (D.C. 2020), and did not formally remand the case to the Superior

Court for the subsequent fee award proceedings; the proceedings on appellees’

motion for a fee award were already pending there and had been held in abeyance

because they depended on our decision as to whether the special motion to dismiss

was properly granted.

29

have been fairer to appellees to raise the procedural issue when appellants opposed

their special motion to dismiss instead of holding it in reserve and raising it in

piecemeal fashion.

Second, we agree with the Superior Court that the fee-shifting provision of

the Anti-SLAPP Act in § 16-5504(a) provides a substantive remedy without

effecting a modification of the Federal Rules of Civil Procedure. 48 Section

16-5504(a) is one of many statutes authorizing fee awards to prevailing parties. The

court could not award fees without such statutory authorization, because “this

jurisdiction follows the American Rule under which every party to a case shoulders

its own attorneys’ fees, and recovers from other litigants only in the presence of

48

In addressing this question, we follow the usual rules of construction in

interpreting the statute and its effect on the Rules of Procedure. “The initial step in

statutory interpretation is to ‘first look at the language of the statute by itself to see

if the language is plain and admits of no more than one meaning’ while construing

the words in their ‘ordinary sense and with the meaning commonly attributed to

them.’” Dobyns v. United States, 30 A.3d 155, 159 (D.C. 2011) (quoting Peoples

Drug Stores, Inc. v. District of Columbia, 470 A.2d 751, 753 (D.C. 1983) (en banc)).

If a statute’s “language is ‘plain’ and allows for no other meaning, we will generally

look no further and give the ‘words used the meaning ordinarily attributed to them.’”

Whitfield v. United States, 99 A.3d 650, 656 (D.C. 2014) (citation omitted). We may

also consider the “statutory context and structure” and “evident legislative purpose.”

Lumen Eight Media Grp., LLC v. District of Columbia, 279 A.3d 866, 874 (D.C.

2022) (quoting In re G.D.L., 223 A.3d 100, 104 (D.C. 2020)).

30

statutory authority, a contractual arrangement, or certain narrowly-defined common

law exceptions such as the conventional bad faith exception.” 49 But in allowing the

court to grant the substantive remedy of a fee award, the Anti-SLAPP Act does not

purport to mandate the procedure that the parties and the court must follow for that

purpose.

Thus, the fee-shifting provision of the Anti-SLAPP Act plainly does nothing

to modify the procedure set forth in the Federal Rules of Civil Procedure for

requesting and obtaining a statutorily authorized award of litigation costs. The

applicable procedure is specified in Rule 54(d). 50 Appellees followed that

procedure, set out in the corresponding Superior Court Civil Rule 54(d), to move for

litigation costs, including attorney fees, as authorized by § 16-5504(a).

49

Oliver T. Carr Co. v. United Techs. Commc’ns Co., 604 A.2d 881, 883

(D.C. 1992) (emphasis added) (citation, internal quotation marks, and alterations

omitted).

50

See Fed. R. Civ. P. 54(d)(2)(A), (B) (“A claim for attorney’s fees and related

nontaxable expenses must be made by motion . . . [and] the motion must . . . specify

the judgment and the statute, rule, or other grounds entitling the movant to the

award”); see also Fed. R. Civ. P. 54(d)(2) advisory committee’s note to 1993

amendment (“[Rule 54(d)(2)] establishes a procedure for presenting claims for

attorneys’ fees” (emphasis added)).

31

Appellants argue that § 16-5504(a) effects a modification of the procedures

set forth in Federal Rule of Civil Procedure 11 for the imposition of sanctions.

Appellants are mistaken. While fee-shifting statutes like § 16-5504(a) are aimed at

compensating prevailing parties in certain types of cases, Rule 11 complements such

statutes by providing sanctions to deter certain improper conduct in litigation. Rule

11 requires attorneys to conduct a reasonable inquiry and certify in each filing that

their legal assertions are warranted, their factual contentions have or are likely to

have evidentiary support, and their filing is “not being presented for any improper

purpose.” 51 If any of those representations are deemed improper, courts may impose

sanctions. 52 The “central purpose of Rule 11 is to deter baseless filings.” 53 Although

the Anti-SLAPP Act likewise seeks to deter meritless lawsuits, 54 the similarities

between the statute and Rule 11 end there.

51

See Fed. R. Civ. P. 11(a), (b).

52

See Fed. R. Civ. P. 11(c).

53

Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990).

54

Even so, the Anti-SLAPP Act is aimed at protecting the First Amendment

whereas Rule 11 is “aimed at curbing abuses of the judicial system.” Id. at 397; see

also Bus. Guides, Inc. v. Chromatic Commc’ns Enters., Inc., 498 U.S. 533, 553

(1991) (“The main objective of the Rule is not to reward parties who are victimized

by litigation; it is to deter baseless filings and curb abuses.”).

32

Rule 11 probes the representations made in a “specific filing,” which is “not

tied to the outcome of litigation.” 55 If (among the many options available) monetary

sanctions are appropriate, they do not “shift the entire cost of litigation; they shift

only the cost of a discrete event” in the course of the litigation. 56 “[O]rdinarily,”

such sanctions should be paid to the court and, only “under unusual circumstances,”

be paid directly to the other party. 57 Section 16-5504(a), by contrast, applies only

after the court has determined that the entire litigation must end because the plaintiff

is not likely to succeed on the merits of the lawsuit. The fees awarded under the

Anti-SLAPP Act compensate the “moving party” — not the court — for the “costs

of litigation,” 58 not the costs incurred in connection with a “discrete event” in the

litigation. Indeed, the advisory committee’s note to the 1993 amendment to Rule 11

acknowledges the potential for overlap between fee-shifting provisions and Rule 11.

The note instructs courts not to apply Rule 11 in a way that is “inconsistent” with or

will “supplant statutes permitting awards of attorney’s fees to prevailing parties or

55

Bus. Guides, 498 U.S. at 553.

56

Id.

57

Fed. R. Civ. P. 11 advisory committee’s note to 1993 amendment.

58

D.C. Code § 16-5504(a).

33

alter the principles governing such awards.” 59 Thus, Rule 11 does not displace the

Anti-SLAPP Act’s fee shifting. Nor does it provide the procedure for fee awards

authorized by a statute; it is Rule 54 that addresses that procedure.

V. The Award of “Fees on Fees”

Appellants’ final challenge is to the trial judge’s award to appellees of the

costs and attorney fees they incurred in applying for their initial fee award. We

review for abuse of discretion and affirm.

Appellants argue that the trial judge erroneously “constrained [his] own

discretion by applying a presumption in favor of fees on fees” and by requiring

appellants to show the existence of special circumstances rendering the supplemental

award unjust to overcome that presumption. We disagree. The presumption in favor

of awarding fees to prevailing defendants in Anti-SLAPP cases that this court held

59

Fed. R. Civ. P. 11 advisory committee’s note to 1993 amendment (“In cases

brought under statutes providing for fees to be awarded to prevailing parties, the

court should not employ cost-shifting under this rule in a manner that would be

inconsistent with the standards that govern the statutory award of fees, such as stated

in Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978).”).

34

applicable in Doe applied to the request for fees on fees, and the judge reasonably

concluded that appellants did not overcome it.

“The law is well established that, when fees are available to the prevailing

party, that party may also be awarded fees on fees, i.e., the reasonable expenses

incurred in the recovery of its original costs and fees.” 60 Indeed, in Doe v. Burke,

where we remanded the case to the trial court to determine a reasonable fee award

to a prevailing defendant under the Anti-SLAPP Act, we specified that the trial court

would also “have to assess the reasonableness of the fee amount that [the defendant]

has indicated it will seek for attorney work subsequent to the original fee request —

so-called ‘fees on fees.’” 61 A supplemental request for the additional fees and costs

reasonably incurred to recover the initial award does not normally require an

additional showing of entitlement. Illustratively, we held in General Federation of

Women’s Clubs that where the trial court had awarded the defendant fees based on

the plaintiff’s bad faith conduct in the litigation, the court could award the costs of

recovering those fees as well without having to find additional bad faith conduct by

60

Gen. Fed’n of Women’s Clubs v. Iron Gate Inn, Inc., 537 A.2d 1123, 1129

(D.C. 1988).

61

133 A.3d 569, 579 (D.C. 2016).

35

the plaintiff; “[b]ad faith in the litigation of the underlying action,” we said, “is

sufficient to support shifting the costs of the fee recovery proceeding itself.” 62 So

too in the present case the trial judge’s earlier determination that special

circumstances did not exist to deny the initial fee motion was sufficient to support

the award of fees on fees. Hence, it was within the judge’s discretion to grant

appellees’ request for that supplemental award without further justification.

Appellants argue that the additional fee award unjustly punished them for

asserting legal challenges, which they characterize as novel and important, in

opposition to appellees’ original fee request. The judge rejected this argument

because, he said, the existence of “[a] reasonable basis for plaintiffs’ arguments

against the award does not mean that defendants are not entitled to the litigation costs

they incurred to successfully rebut those arguments.” Regardless of whether

appellants’ arguments were novel, important, or particularly persuasive, we think

the judge was correct; that appellants may have had reasonable arguments against a

fee award did not make the award unjust. And it would make it too easy to overcome

the Anti-SLAPP Act’s statutory presumption in favor of an award if it were

otherwise.

62

537 A.2d at 1130.

36

Appellants do not dispute the reasonableness of the fees and costs that

appellees incurred to obtain their initial fee award. We have no reason to disturb the

trial judge’s conclusion that appellees’ supplemental request for $29,807.50 was

reasonable.

VI.

For the foregoing reasons, we affirm the order granting appellees’ initial

request pursuant to D.C. Code § 16-5504(a) for litigation costs, including attorney

fees, incurred in connection with their successful special motion to dismiss under

the Anti-SLAPP Act, and we affirm the order granting appellees’ request for costs

and fees incurred to prepare and litigate their initial request for fees and costs.