Figueroa v. The Woodstock Resort Corp.
| Docket Number | 23-CV-01822 |
| Decision Date | 28 November 2023 |
| Citation | 2023 Vt Super 112801 |
| Parties | Alejandro Figueroa Plaintiff v. The Woodstock Resort Corp. and Devon Kurtz Defendants |
| Court | Superior Court of Vermont |
DECISION ON DEFENDANT DEVON KURTZ'S SPECIAL MOTION TO STRIKE
Plaintiff Alejandro Figueroa was formerly employed as the athletic director at the Woodstock Inn and Resort. He was fired in the spring of 2023, and his departure thereafter became the subject of gossip and speculation amongst club patrons. One of those patrons, defendant Devon Kurtz, wrote a letter to the editor of the local newspaper, purporting to "speak up" about the circumstances of the termination. He wrote that he could not address "the specific reasons" as to why plaintiff was fired, but that he would "speak to what happened to me directly." He then recounted a particular instance in which plaintiff allegedly sexually harassed him while he was using the resort's athletic facilities. He also wrote that, during the same event plaintiff admitted to sexually harassing another employee under plaintiff's supervision, and that there had been a "documented pattern" of plaintiff "allegedly targeting young men at the club with sexual remarks and advances."
Defendant's letter also addressed broader themes. Defendant contextualized plaintiff's behavior as having been enabled by an "unaccountable organizational culture" at the resort, and he wrote that the purpose of his letter was to discuss "[t]he institutional failings of a flagship organization in the heart of our town," and the "reverberating effects" of those failures upon the economic and cultural vitality of the community. He ended the letter with a public call to support the employees of the resort.
Plaintiff has sued both defendant and the resort for defamation and false light.[1] Plaintiff's claims are based upon the publication of the letter. More specifically, plaintiff alleges that the following descriptions were false: (1) defendant's testimonial about "what happened to me directly," (2) defendant's assertion that plaintiff admitted to sexually harassing another employee under his supervision, and (3) defendant's assertion that there was a "documented pattern" of plaintiff "allegedly targeting young men at the club with sexual remarks and advances." Plaintiff contends that the publication of the letter caused him to experience "serious injury in the form of embarrassment, humiliation, anxiety, and a weakened ability to find gainful employment and advance his career." He also contends, without further elaboration, that the publication of the letter caused him to suffer "lost compensation, benefits, and career opportunities."[2]
Defendant Kurtz has filed a special motion to strike under 12 V.S.A. § 1041. His motion is brought under a statute that was enacted about twenty years ago as part of a nationwide response to "lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and freedom to petition the government for the redress of grievances." Felis v. Downs Rachlin Martin PLLC, 2015 VT 129, ¶ 29, 200 Vt. 465. In their original form, these lawsuits, known as "strategic lawsuits against public participation," involved situations where environmental activists opposed a development project, and the developer responded by suing the activists, e.g., Protect Our Mountain Environment, Inc. v. District Court, 677 P.2d 1361, 1363-64, 1368 (Colo. 1984); Baker v. Parsons, 750 N.E.2d 953, 956-57 (Mass. 2001). By suing the activists, the developer did not necessarily intend to prevail on the merits, but rather intended to impose litigation costs upon them, and thereby deter them and others from continuing their opposition to the permit, or from speaking out publicly in the future. Felis, 2015 VT 129, ¶¶ 29-30; Jang v. Trustees of St. Johnsbury Academy, 331 F.Supp.3d 312, 335 (D. Vt. 2018); Morse Bros., Inc. v. Webster, 772 A.2d 842, 846 (Me. 2001); Duracraft Corp. v. Holmes Products Corp., 691 N.E.2d 935, 940 (Mass. 1998).
Legislatures across the country responded to the prevalence of these lawsuits by enacting statutes that were meant to "stop" "strategic lawsuits against public participation" "early in [their] tracks." Nader v. Maine Democratic Party, 2012 ME 57, ¶ 14, 41 A.3d 551; Blanchard v. Steward Carney Hosp., Inc., 75 N.E.3d 21, 36 (Mass. 2017). These so-called "anti-SLAPP" statutes function by allowing the activists to file a special motion to dismiss upon commencement of the case, before litigation costs are incurred. The idea of the statutes is to "prevent the misuse of the courts." Felis, 2015 VT 129, ¶ 30; Jang v. Trustees of St. Johnsbury Academy, 331 F.Supp.3d 312, 335 (D. Vt. 2018).
Like other anti-SLAPP statutes, the plain language of 12 V.S.A. § 1041 does not limit its application to the context of environmental activism. Legislatures across the country have experimented with various formulations of the substantive and procedural standards, and courts have reached different conclusions about the scope of the statute's protections, e.g., Nader, 2012 ME 57, ¶ 14; Blanchard, 75 N.E.3d at 35. In Vermont, for example, there are numerous recent cases in which media organizations have successfully used the statute to obtain dismissal of frivolous defamation actions, especially in cases involving reporting about crime and the criminal-justice system, e.g., Wolfe v. VT Digger, 2023 VT 50; Rivard v. Brattleboro Reformer, No. 23-AP-149, 2023 WL 5994216 (Vt. Sept. 2023) (unpub. mem.); Gibbons v. Gray, No. 23-AP-055, 2023 WL 5994062 (Vt. Sept. 2023) (unpub. mem.); Cornelius v. Chronicle, Inc., 2019 VT 4, 209 Vt. 405; Cegalis v. Hewitt, No. 13-1-17 Wncv, 2017 WL 11636068 (Teachout, J.); Chandler v. Rutland Herald Publishing, No. 2015-265, 2015 WL 7628687 (Vt. Nov. 2015) (unpub. mem.). Some states agree with Vermont that their anti-SLAPP statute protects media organizations against frivolous defamation actions, e.g., Smith v. Supple, 293 A.3d 851, 861-62 (Conn. 2023), whereas other states have held that their anti-SLAPP statutes do not apply to these types of cases, e.g., Gaudette v. Mainely Media, LLC, 2017 ME 87, ¶¶ 13-18, 160 A.3d 539; Fustolo v. Hollander, 920 N.E.2d 837, 844 (Mass. 2010). In other words, there is a wide variety of views from one jurisdiction to another about how these statutes function, and to what types of cases they should apply. A nationwide search reveals thousands of reported opinions discussing the application of anti-SLAPP statutes to all manner of civil actions, including but not limited to employment-discrimination cases, defamation cases, and cases arising from university sexual-assault adjudications. Outcomes vary, depending upon the facts of each case and the language of the particular anti-SLAPP statute at issue.
In Vermont, § 1041 provides that a defendant may file a special motion to dismiss within the first sixty days of the proceeding. The defendant bears the initial burden of establishing that the lawsuit is indeed a "strategic lawsuit against public participation" by showing that the lawsuit arose from their exercise of the right of freedom of speech "in connection with a public issue." 12 V.S.A. § 1041(a). If that showing is made, the special motion is granted, and the case is dismissed, unless the plaintiff shows that the defendant's underlying exercise of free-speech rights was "devoid of any reasonable factual support and any arguable basis in law," and that the defendant's actions "caused actual injury" to the plaintiff. 12 V.S.A. § 1041(e)(1).
At issue first is whether the defendant has established that this lawsuit arises from his exercise of the right of freedom of speech in connection with a public issue. Wolfe, 2023 VT 50, ¶ 18; Cornelius, 2019 VT 4, ¶ 8, 209 Vt. 405; Jang, 331 F.Supp.3d at 335.
As mentioned above, plaintiff has sued defendant for defamation and false light based upon statements contained within defendant's letter to the editor. A letter to the editor of a newspaper is a classic example of a public statement, and is unquestionably an exercise of the right of free speech. Bock v. Smith, No. 2017-176, 2017 WL 5989987 (Vt. Nov. 2017) (unpub. mem.); Schelling v. Lindell, 2008 ME 59, ¶ 13, 942 A.2d 1226; Maietta Construction, Inc. v. Wainwright, 2004 ME 53, ¶ 8, 847 A.2d 1169; Cardno ChemRisk, LLC v. Foytlin, 68 N.E.3d 1180, 1187 (Mass. 2017).
A public statement is not protected by the statute, however unless the statement also "concern[s] an issue of public interest." 12 V.S.A. § 1041(i)(3); Wolfe, 2023 VT 50, ¶ 8; Cornelius, 2019 VT 4, ¶ 8; Jang, 331 F.Supp.3d at 335. Exactly what it means for a public statement to concern an issue of public interest is not defined in the statute. A review of existing cases suggests that the determination is fact-dependent, involving considerations such as the circumstances of the speech, the public profiles of the parties involved, and whether the statements involved material that could affect members of the public beyond the direct participants involved. Jang, 331 F.Supp.3d at 337 &341-42; Felis, 2015 VT 129, ¶¶ 47-52, 200 Vt. 465. Many other formulations and considerations are articulated in the cases, all directed in one way or another towards assessing whether the case implicates the concerns meant to be protected by the statute, or whether the speech involved was more private in nature, e.g., Felis, 2015 VT 129, ¶¶ 50-53; Jang, 331 F.Supp.3d at 336; Ernst v. Kauffman, 2016 WL 1610608 (D. Vt. Apr. 20, 2016); Weinberg v. Feisel, 2 Cal.Rptr.3d 385, 392-93 (Cal.Ct.App. 2003); Blum, Application of Anti-SLAPP (Strategic Lawsuit Against Public Participation) Statutes to Defamation Claims Related...
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