Am. Studies Ass'n v. Bronner

• Decision Date: 30 September 2021
• Docket Number: No. 19-CV-1222,19-CV-1222
• Citation: 259 A.3d 728
• Parties: AMERICAN STUDIES ASSOCIATION, et al., Appellants, v. Simon BRONNER, et al., Appellees.
• Court: D.C. Court of Appeals

259 A.3d 728

AMERICAN STUDIES ASSOCIATION, et al., Appellants,

v.Simon BRONNER, et al., Appellees.

No. 19-CV-1222

District of Columbia Court of Appeals.

Argued May 11, 2021

Decided September 30, 2021

Thomas C. Mugavero, Falls Church, VA, for appellants the American Studies Association, Duggan, Marez, Tadiar, Maira, Reddy, and Stephens.

Maria C. Lahood, New York, NY, with whom Astha Sharma Pokharel and Shayana D. Kadidal were on the brief, for appellant Salaita.

Mark Kleiman for appellant Puar.

Jerome M. Marcus, Wyncote, PA, with whom Jennifer Gross, Joel Friedlander, Wilmington, DE, and Eric D. Roiter were on the brief, for appellees.

Radhika Sainath, in support of appellants, for amicus curiae Palestine Legal.

Laura C. Regan, Marco Simons, and Rebecca Chapman, in support of appellants, for amicus curiae Members of the "Protect the Protest" Task Force.

Baruch Weiss and Graham W. White, Washington, in support of appellees, for amicus curiae Scholars for Peace in the Middle East.

Don Padou, amicus, in support of neither side.

Before Glickman, Easterly, and Deahl, Associate Judges.

Glickman, Associate Judge:

This interlocutory appeal is from the Superior Court's denial of a "special motion to dismiss" under the Anti-Strategic Lawsuits Against Public Participation ("Anti-SLAPP") Act.¹ The appeal requires us to construe certain of the statutory requirements governing such motions.

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 Anti-SLAPP Act provides procedural mechanisms to thwart such suits. One of those mechanisms is a special motion to dismiss SLAPP claims with prejudice at the outset of the litigation with minimal or no discovery, "as soon as practicable" after an expedited hearing.³ If the trial court grants the motion, it may award the costs of litigation, including reasonable attorney fees, to the movant.⁴

The Anti-SLAPP Act specifies the showing each party must make in the litigation of a special motion to dismiss. The initial burden is on the movant to "make[ ] a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest."⁵ The burden then shifts to the responding party to "demonstrate[ ] that the claim is likely to succeed on the merits ."⁶ The disputed issues in this appeal concern the interpretation of the italicized words ("arises from" and "likely to succeed on the merits") and whether the parties shouldered their respective burdens.

Appellant American Studies Association ("ASA") is a non-profit research organization. In 2013, it formally adopted a resolution endorsing a boycott of Israeli academic institutions ("2013 Resolution"). Appellees were ASA members at or around that time. They filed the instant lawsuit in Superior Court against the ASA and several of its officers, directors, and other members (who now are appellants along with the ASA). In the interest of clarity, we shall frequently refer to appellants in this opinion as the "ASA defendants" (or just as the "defendants"); and we shall refer to appellees as the "plaintiffs."

The twelve-count complaint alleged various breaches of fiduciary duty, as well as breaches of contract, tortious interference with contract, corporate waste, and violations of the District's Nonprofit Corporation Act.⁷ The ASA defendants responded to the complaint by filing a motion to dismiss pursuant to Superior Court Civil Rule 12(b)(6) for failure to state claims upon which relief can be granted, and a special anti-SLAPP motion to dismiss the lawsuit. In their 12(b)(6) motion, the defendants argued that plaintiffs’ claims were time-barred, as well as precluded or deficient for other reasons. In their anti-SLAPP motion, the defendants argued that all the plaintiffs’ claims "arise, in one way or another" from the ASA's 2013 Resolution, which was an "act in furtherance of the right of advocacy on issues of public interest."

Plaintiffs contested both motions. In response to the anti-SLAPP motion, they argued that their claims did not "arise from" protected activity, but rather from "specific non-speech acts that violated [d]efendants’ obligations to the ASA and its members, under principles of corporate, tort and contract law." Plaintiffs also argued that their claims were not barred or defective and were likely to succeed on the merits.

The trial court granted the 12(b)(6) motion in part. It ruled that several counts of the complaint were time-barred in whole or part but that the remaining counts were not subject to dismissal for failure to state a claim on which relief could be granted. The court denied the special motion to dismiss. It concluded the defendants had made the necessary prima facie showing that the plaintiffs’ claims arose from acts in furtherance of the right of advocacy, inasmuch as the claims all challenged actions that were related in some way to the 2013 Resolution. Nonetheless, the court also concluded that this fact did not entitle the defendants to relief under the Anti-SLAPP Act because the plaintiffs had "demonstrated that a number of their claims have merit."

In the present interlocutory appeal, the ASA defendants ask us to reverse the denial of their special motion to dismiss. They do not appeal the partial denial of their 12(b)(6) motion.⁸

The ASA defendants argue that the trial court should have granted their anti-SLAPP motion to dismiss the counts that fail to state a claim for relief because for that very reason those counts are not "likely to succeed on the merits." As to the remaining counts of the complaint, the ASA defendants argue that the court erred in failing to assess the likelihood of success of each claim individually and in merely concluding that a number of the claims had merit. In response, the plaintiffs argue that the standard for dismissal under Rule 12(b)(6) is "unrelated" to the anti-SLAPP standard of likelihood of success on the merits, and that all their claims are sufficiently meritorious to meet that standard. In the alternative, plaintiffs argue that the special motion to dismiss was properly denied because their claims do not "arise from acts in furtherance of public advocacy" of the ASA defendants within the meaning of the Anti-SLAPP Act.

We hold that a claim is not "likely to succeed on the merits" within the meaning of the Anti-SLAPP Act if the claim is subject to dismissal under Rule 12(b)(6), and we agree with the defendants that the court was required to determine likelihood of success on a claim-by-claim basis. We further hold that for a claim to "arise from" an act in furtherance of public advocacy, a party's statutorily protected activity must itself be the basis for that party's asserted liability. In consequence of these holdings, we vacate the denial of the special motion to dismiss and remand the case to the Superior Court for further proceedings consistent with this opinion.

I. Background

A. The Parties

Appellant ASA is a non-profit organization, founded in 1951, that promotes "the study of American culture through the encouragement of research, teaching, [and] publication," as well as "the strengthening of relations among persons and institutions in this country and abroad devoted to such studies." The ASA has been incorporated in the District under the Nonprofit Corporation Act since 1971.

In 2013, the ASA had approximately 3,800 members. Regular ASA members were required to pay dues in yearly installments. Members whose dues were six months in arrears would be dropped from the rolls, but they could be "reinstated at any time by the payment in advance of one year's dues." The ASA's constitution also provided for honorary members, who were exempt from paying dues. All ASA members in good standing enjoyed "the right to vote and hold office in the association."

The ASA's leadership was made up of five officers: the president, the vice-president, the executive director, the editor of the American Quarterly journal, and the editor of the Encyclopedia of American Studies ("the Encyclopedia"). The president and the vice-president were elected; the other three officers were appointed. All five officers were members of the ASA's board of directors, called the National Council, but the appointed officers were non-voting (ex officio ) members. An Executive Committee implemented the National Council's directives.

The ASA maintained a "Trust and Development Fund ... to insure [sic] the long-term financial stability of the association." The ASA's constitution provided that the Fund "may also from time to time make grants in support of the projects, activities, or prizes of the association." Withdrawals from the Fund were conditioned on "the request of at least two-thirds of the voting members of the [National] Council approved by at least four members of the Board of Trustees." The Board of Trustees consisted of the ASA vice-president and four members appointed by the ASA president "with the advice and consent" of the National Council. The trustees were required to "direct the investment of the Fund's resources in a fiscally sound and socially responsible manner."

Except for appellant Steven Salaita, who did not join the ASA's National Council until 2015, the individual appellants all were ASA members in 2013. At times relevant to the instant lawsuit, appellants Curtis Marez, Lisa Duggan, Sunaina Maira, Kehaulani Kauanui, Chandan Reddy, and John Stephens were ASA officers or held positions on the National Council and/or the Executive Committee.⁹ Appellants Neferti Tadiar and Jasbir Puar served on committees within the ASA.¹⁰

Several of the individual appellants also were involved with the United States Association for the Academic and Cultural Boycott of Israel ("USACBI").¹¹ USACBI was founded in 2009 as part of the larger "Boycott, Divestment, Sanctions" Movement, commonly known by the acronym BDS. It lobbies organizations to...