COCKRUM et al v. DONALD J. TRUMP FOR PRESIDENT, INC. et al

Filing 13

MOTION to Dismiss under the D.C. Anti-SLAPP Act by DONALD J. TRUMP FOR PRESIDENT, INC. (Attachments: # 1 Text of Proposed Order)(Carvin, Michael)

Case 1:17-cv-01370-ESH Document 13 Filed 09/05/17 Page 1 of 24

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ROY COCKRUM,

ET AL .,

Plaintiffs,
v.

Case No. 1:17-cv-1370-ESH

DONALD J. TRUMP FOR PRESIDENT,
INC., ET AL .,
Defendants.

DEFENDANT DONALD J. TRUMP FOR PRESIDENT, INC.’S
SPECIAL MOTION TO DISMISS
UNDER THE D.C. ANTI-SLAPP ACT

Jeffrey Baltruzak
JONES DAY
500 Grant Street, Suite 4500
Pittsburgh, PA 15219
[phone]
[e-mail]

Michael A. Carvin
Counsel of Record
Vivek Suri
JONES DAY
51 Louisiana Avenue, NW
Washington, DC 20001
[phone]
[e-mail]
[e-mail]

Counsel for Donald J. Trump for President, Inc.

Case 1:17-cv-01370-ESH Document 13 Filed 09/05/17 Page 2 of 24

Defendant Donald J. Trump for President, Inc. (the Campaign) respectfully
moves that the Court dismiss Plaintiffs’ claims for public disclosure of private facts
and intentional infliction of emotional distress in accordance with the District of Columbia Anti-SLAPP Act (D.C. Code § 16-5502(a)). In accordance with the AntiSLAPP Act (id. § 16-5504(a)) and Federal Rule of Civil Procedure 54(d)(2), the Campaign reserves the right to seek the costs of litigation, including a reasonable attorney’s fee, if the Court grants the motion.
Dated: September 5, 2017
Jeffrey Baltruzak (PA Bar No. 318156)
JONES DAY
500 Grant Street, Suite 4500
Pittsburgh, PA 15219
[phone]
[e-mail]

Respectfully submitted,
/s/ Michael A. Carvin
Michael A. Carvin (DC Bar No. 366784)
Counsel of Record
Vivek Suri (DC Bar No. 1033613)*
JONES DAY
51 Louisiana Avenue, NW
Washington, DC 20001
[phone]
[e-mail]
[e-mail]

Counsel for Donald J. Trump for President, Inc.
(* application for admission pending)

Case 1:17-cv-01370-ESH Document 13 Filed 09/05/17 Page 3 of 24

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ROY COCKRUM,

ET AL .,

Plaintiffs,
v.

Case No. 1:17-cv-1370-ESH

DONALD J. TRUMP FOR PRESIDENT,
INC., ET AL .,
Defendants.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANT DONALD J. TRUMP FOR PRESIDENT, INC.’S
SPECIAL MOTION TO DISMISS
UNDER THE D.C. ANTI-SLAPP ACT

Jeffrey Baltruzak
JONES DAY
500 Grant Street, Suite 4500
Pittsburgh, PA 15219
[phone]
[e-mail]

Michael A. Carvin
Counsel of Record
Vivek Suri
JONES DAY
51 Louisiana Avenue, NW
Washington, DC 20001
[phone]
[e-mail]
[e-mail]

Counsel for Donald J. Trump for President, Inc.

Case 1:17-cv-01370-ESH Document 13 Filed 09/05/17 Page 4 of 24

TABLE OF CONTENTS
Page
Table of Authorities ...................................................................................................... ii
Introduction .................................................................................................................. 1
Facts .............................................................................................................................. 2
Legal Background ......................................................................................................... 4
Argument ...................................................................................................................... 5
I.

The District of Columbia Anti-SLAPP Act applies in federal court ................... 5
A. The Anti-SLAPP Act is consistent with the Federal Rules .......................... 6
B. Applying the Anti-SLAPP Act in federal court advances the twin
aims of Erie ..................................................................................................... 8
C. Abbas permits application of the Anti-SLAPP Act, as now authoritatively interpreted by the D.C. Court of Appeals, in federal court .............. 10

II.

The Anti-SLAPP Act requires dismissal of Plaintiffs’ D.C.-law claims ........... 12
A. Plaintiffs’ claims arise from an act in furtherance of the right of
advocacy on issues of public interest ........................................................... 12
B. Plaintiffs have yet to produce any evidence at all, let alone enough
evidence to allow a jury to rule for them ..................................................... 16

Conclusion ................................................................................................................... 16
Certificate of Service

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TABLE OF AUTHORITIES
Page(s)
CASES
Abbas v. Foreign Policy Group, LLC,
783 F.3d 1328 (D.C. Cir. 2015)......................................................................... 10, 11
Burke v. Air Serv International, Inc.,
685 F.3d 1102 (D.C. Cir. 2012)................................................................................. 5
Burlington N. R.R. Co. v. Woods,
480 U.S. 1 (1987) ...................................................................................................... 6
California Democratic Party v. Jones,
530 U.S. 567 (2000) ................................................................................................ 13
Citizens United v. FEC,
558 U.S. 310 (2010) ................................................................................................ 13
Cohen v. Beneficial Industries Loan Corp.,
337 U.S. 541 (1949) .................................................................................................. 7
*

Competitive Enterprises Institute v. Mann,
150 A.3d 1213 (D.C. 2016)...............................................................................passim
Dunning v. Quander,
508 F.3d 8 (D.C. Cir. 2007) (per curiam) ................................................................. 6
Easaw v. Newport,
— F. Supp. 3d —, 2017 WL 2062851 (D.D.C. 2017).............................................. 11
Erie Railroad Co. v. Tompkins,
304 U.S. 64 (1938) ...........................................................................................passim
Gasperini v. Center for Humanities, Inc.,
518 U.S. 415 (1996) .............................................................................................. 5, 8
Grosjean v. American Press Co.,
297 U.S. 233 (1936) ................................................................................................ 13
Hanna v. Plumer,
380 U.S. 460 (1965) .......................................................................................... 5, 6, 9

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Shady Grove Orthopedic Associates v. Allstate Ins. Co.,
559 U.S. 393 (2010) .............................................................................................. 5, 6
United States ex rel. Newsham v. Lockheed Missiles & Space Co.,
190 F.3d 963 (9th Cir. 1999) .................................................................................... 9
Walker v. Armco Steel Corp.,
446 U.S. 740 (1980) .................................................................................................. 6
STATUTES
42 U.S.C. § 1985 ............................................................................................................. 3
D.C. Code § 16-5501 ......................................................................................... 12, 14, 15
D.C. Code § 16-5502 ..............................................................................................passim
D.C. Code § 16-5504 ....................................................................................................... 4
OTHER AUTHORITIES
Fed. R. Civ. P. 56 ..................................................................................................passim

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INTRODUCTION
Plaintiffs claim that the Trump Campaign committed a tort by conspiring with
others to speak about them. They allege that Russian hackers stole emails from the
Democratic National Committee, and that the Campaign later conspired with others to publish those emails on WikiLeaks. Plaintiffs do not claim that the Campaign
participated in the hack itself; rather, they claim that the mere dissemination of the
information is tortious. Plaintiffs seek, in other words, to hold the Campaign liable
for speech. Not for false speech, defamatory speech, or threatening speech, but for
truthful speech uttered in the course of a presidential campaign.
The District of Columbia has enacted a statute—the Anti-SLAPP Act (D.C. Code
§ 16-5502)—to protect defendants from just such lawsuits. Under that statute, a
court must dismiss any claim arising out of speech related to issues of public interest, unless the plaintiff, at the outset of the case, produces the same evidence that
he would need to survive summary judgment.
The Anti-SLAPP Act governs the resolution of D.C.-law claims in federal court.
Plaintiffs’ claims for public disclosure of private facts and intentional infliction of
emotional distress trigger the statute’s protections, yet Plaintiffs have not even attempted to introduce affidavits or other evidence to satisfy the Act’s evidentiary requirements. The Court should therefore dismiss these claims. *

The issues presented in this motion overlap with the issues in No. 1:17-cv-913-ESH, Deripaska v.
Associated Press, which is also pending before this Court. In that case, a Russian billionaire sued the
Associated Press for defaming him in an article about Paul Manafort’s alleged links with Russia. The
Associated Press has sought dismissal of the lawsuit under the D.C. Anti-SLAPP Act.
*

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FACTS
On July 22, 2016, days before the Democratic Convention met to nominate Hillary Clinton for President, WikiLeaks published thousands of work emails sent and
received by officials at the DNC. (Compl. ¶ 36.) As a result, the public learned important information about the presidential campaign and the Democratic Party. For
example (as shown in exhibits attached to the Campaign’s motion to dismiss):
• The emails revealed DNC officials’ hostility toward Senator Bernie Sanders
during the Democratic primaries. DNC figures discussed portraying Senator
Sanders as an atheist, speculating that “this could make several points difference” because “my Southern Baptist peeps would draw a big difference between a Jew and an atheist.” (Ex. 1.) They suggested pushing a media narrative that he “never ever had his act together, that his campaign was a mess.”
(Ex. 2.) They opposed his push for additional debates. (Ex. 3.) They complained
that he “has no understanding” of the Democratic Party. (Ex. 4.)
• According to The New York Times, “thousands of emails” between donors and
fundraisers revealed “in rarely seen detail the elaborate, ingratiating and often
bluntly transactional exchanges necessary to harvest hundreds of millions of
dollars from the party’s wealthy donor class.” These emails “capture[d] a world
where seating charts are arranged with dollar totals in mind, where a White
House celebration of gay pride is a thinly disguised occasion for rewarding
wealthy donors and where physical proximity to the president is the most precious of currencies.” (Ex. 5.)
• The emails revealed the coziness of the relationship between the DNC and the
media. For example, they showed that reporters would ask DNC to preapprove articles before publication. (Ex. 6.) They also showed staffers talking
about giving a CNN reporter “questions to ask us.” (Ex. 7.)
• The emails revealed the DNC’s attitudes toward Hispanic voters. One memo
discussed ways to “acquire the Hispanic consumer,” claiming that “Hispanics
are the most brand loyal consumers in the World” and that “Hispanics are the
most responsive to ‘story telling.’” (Ex. 8.) Another email pitched “a new video
we’d like to use to mop up some more taco bowl engagement.” (Ex. 9.)

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WikiLeaks, however, did not redact the emails, so the publication also included
details that Plaintiffs describe as private. (Compl. ¶¶ 41–46.) Plaintiffs Roy
Cockrum and Eric Schoenberg, both Democratic Party donors, allege that the
emails revealed their social security numbers, dates of birth, addresses, and other
identifying information, which they say they sent to the DNC in order to get clearances to attend an event with President Barack Obama. (Id. ¶¶ 43–44.) Plaintiff
Scott Comer, formerly the DNC’s Finance Chief of Staff and LGBT Finance Director,
alleges that the emails included information “suggesting” (and allowing his grandparents to “deduc[e]”) that “he is gay.” (Id. ¶¶ 19, 45.)
Plaintiffs sued Donald J. Trump for President, Inc. (the Campaign) and Roger
Stone over the publication of the emails. They allege that “elements of Russian intelligence” (on their own, without involvement of the Campaign) hacked into the
DNC’s email systems “in July 2015” and “maintained that access” over the course of
the next year. (Id. ¶ 76.) They say that, in “a series of secret meetings in the spring
and summer of 2016,” the Campaign and Stone conspired with “Russian actors” to
publish those emails on WikiLeaks in order to harm Hillary Clinton. (Id. at 19.)
They say that this conspiracy covered only the “release” of the emails, not their initial acquisition. (Id. ¶ 137.)
Plaintiffs raise claims under D.C. law for public disclosure of private facts and intentional infliction of emotional distress. They also raise a claim under 42 U.S.C.
§ 1985(3) for conspiracy to intimidate or injure voters.

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LEGAL BACKGROUND
A strategic lawsuit against public participation (or SLAPP) is a lawsuit “filed by
one side of a political or public policy debate aimed to punish or prevent the expression of opposing points of view.” Competitive Enterprises Institute v. Mann, 150 A.3d
1213, 1226 (D.C. 2016). Under traditional court rules, SLAPPs deter speech even if
they are ultimately dismissed, because they drag speakers through onerous discovery and trial proceedings.
The District of Columbia, like many states, has responded to this threat to public
debate by enacting a statute under which the defendant may secure dismissal of a
speech-related lawsuit before discovery. To claim the protection of the act, the defendant must first 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.” § 165502(b). If the defendant does so, the court must dismiss the case with prejudice unless the plaintiff “demonstrates that the claim is likely to succeed on the merits.” Id.
The D.C. Court of Appeals has held that this likely-to-succeed standard “is substantively the same” as Federal Rule 56’s standard for summary judgment. Mann,
150 A.3d at 1238 n.32. The plaintiff must come forward with “evidence” that “suffices to permit a jury” to find for him on each element of his claim. Id. The main difference between an anti-SLAPP motion and a summary judgment motion is that the
former requires the plaintiff to produce the requisite evidence before discovery. Id.;
see § 16-5502(c). In addition, a defendant who prevails on the anti-SLAPP motion
may recover “the costs of litigation, including reasonable attorney fees.” § 16-5504(a).

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ARGUMENT
The D.C. Anti-SLAPP Act applies in federal court. The Act requires dismissal of
Plaintiffs’ D.C.-law claims.
I. The District of Columbia Anti-SLAPP Act Applies in Federal Court
Ever since Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), federal courts hearing state-law claims have applied state substantive law and federal procedural law.
The District of Columbia is not a state, but the same framework governs federal
courts hearing claims under D.C. local law. Burke v. Air Serv International, Inc., 685
F.3d 1102, 1107 n.4 (D.C. Cir. 2012).
Federal courts apply a two-step test to determine whether a state or federal provision governs a given issue. Shady Grove Orthopedic Associates v. Allstate Ins. Co.,
559 U.S. 393, 398 (2010); see Burke, 685 F.3d at 1107. First, regardless of whether
the state provision is substantive or procedural, it is preempted if it comes into “direct collision” with a valid Federal Rule. Hanna v. Plumer, 380 U.S. 460, 465 (1965).
If there is no direct collision, the court proceeds to the second step to determine
whether the state law is substantive or procedural. This issue turns on whether
application of the state provision would advance the “twin aims” of Erie—namely,
avoiding unfair discrimination in the administration of state law and discouraging
forum-shopping. Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 428 (1996).
If it would, the federal court must apply the state provision. Id.
As we explain below, these principles require application of the D.C. Anti-SLAPP
Act in federal court.

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A. The Anti-SLAPP Act is consistent with the Federal Rules
A Federal Rule blocks application of a state law only if the two come into “direct
collision.” Hanna, 380 U.S. at 472. The Anti-SLAPP Act, as interpreted by the D.C.
Court of Appeals, does not come into direct collision with any Federal Rule.
A state provision and Federal Rule “directly collide” only where they
“unavoidabl[y]” “clash” (Walker v. Armco Steel Corp., 446 U.S. 740, 749 (1980)),
“unmistakably conflic[t]” (Burlington N. R.R. Co. v. Woods, 480 U.S. 1, 7 (1987)), or
“flatly contradict each other” (Shady Grove, 559 U.S. at 405). Far from “flatly contradicting” the Federal Rules, the Anti-SLAPP Act replicates the standard for summary judgment established by Federal Rule of Civil Procedure 56. As the D.C. Court
of Appeals put it, the anti-SLAPP and summary-judgment standards are “substantively the same.” Mann, 150 A.3d at 1238 n.32. Two provisions cannot “unmistakably conflict” if they require application of the same substantive standard.
To be sure, the Anti-SLAPP Act protects defendants more than Rule 56 does. The
Act requires courts to decide motions before discovery; the Rule does not. The Act
allows courts to award attorney fees; the Rule, again, does not. But the substantive
standard under the Act and the Rule are the same, and the Act’s different means of
enforcing that standard do not conflict with any Federal Rule. Nothing in the Rules
prohibits disposing of a case before discovery; to the contrary, courts may grant dismissal, judgment on the pleadings, and (in some cases) even summary judgment before discovery (see Dunning v. Quander, 508 F.3d 8, 10 (D.C. Cir. 2007) (per curiam)).
And nothing in the Rules prohibits courts from awarding fees; to the contrary, Rule

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54(d)(2) states that entitlement to fees depends on “substantive law” rather than on
the Rules of Procedure. The Act complements the Rules; it does not contradict them.
The Supreme Court’s decision in Cohen v. Beneficial Industries Loan Corp., 337
U.S. 541 (1949), reinforces this analysis, because it confirms that the Federal Rules
usually do not preempt state provisions that grant defendants extra protection
against meritless litigation. The Federal Rule in Cohen (then Rule 23, now Rule
23.1) established prerequisites for bringing shareholder derivative lawsuits; for example, the shareholder had to verify the complaint and identify previous attempts
to use internal corporate procedures to resolve the problem. The state law in Cohen
imposed an additional requirement intended to deter frivolous derivative lawsuits:
Shareholders also had to post bond covering the corporation’s costs and attorney
fees. In an opinion by Justice Jackson, the Supreme Court held that the state law
applied in federal court, because there was “n[o] conflict” between federal law and
the supplemental safeguards provided by state law. Id. at 556.
The same reasoning applies here. As in Cohen, the Federal Rules establish certain minimum requirements for bringing lawsuits. As in Cohen, the state law creates a further safeguard in order to deter a category of abusive lawsuits (there abusive lawsuits against corporations, here abusive lawsuits against speakers). As in
Cohen, federal courts may apply the state law, since the state safeguard reinforces
the federal provisions and does not contradict them.
There is, thus, no “direct collision” between the Anti-SLAPP Act and any Federal
Rule. The Act satisfies the first step of the Erie test.

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B. Applying the Anti-SLAPP Act in federal court advances the twin aims
of Erie
The second step of the inquiry asks whether applying state law would advance
the “twin aims of the Erie rule”—avoiding inequitable administration of state law
and discouraging forum-shopping. Gasperini, 518 U.S. at 428. Applying the AntiSLAPP Act in federal court would promote both of these objectives.
Erie’s first aim is avoiding “discrimination” between litigants in state court and
litigants in federal court. Erie, 304 U.S. at 74. Any such discrimination contradicts
elementary principles of “equal protection,” which call for “uniformity in the administration” of state law regardless of “whether enforcement [is] sought in the state or
in the federal court.” Id. at 74–75.
Applying the Anti-SLAPP Act in the District’s local courts but not in its federal
courts would produce precisely the kind of discrimination and disuniformity that
Erie aims to avoid. If a speaker gets sued in the District’s local courts, he could
move to dismiss his case at once. But if a speaker gets sued in the District’s federal
courts—say, because he happens to be from a different state than the plaintiff, triggering diversity jurisdiction—he would have to endure months of pleading, discovery, and trial. The result is a two-tier marketplace of ideas, in which speakers receive more or less protection depending on whether they end up in federal or local
court (which, in light of the requirements for federal diversity jurisdiction, may depend on the states in which the speakers and their adversaries happen to live). Erie
directs courts to avoid this kind of disparity.

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Erie’s second aim is to prevent forum-shopping. Hanna, 380 U.S. at 467. To promote this aim, courts must avoid any divergence between federal and state practice
that makes an “important … difference to the character or result of the litigation,”
or has an “important … effect upon the fortunes of one or both of the litigants.” Id.
at 468 n.9. Courts may, however, tolerate “trivial” discrepancies between federal and
state practice—say, variations in time limits for filing pleadings—because they are
unlikely to prompt forum-shopping. Id. at 468.
Applying the Anti-SLAPP Act in local but not federal court would generate the
very forum-shopping that Erie seeks to avoid. Far from having merely “trivial” consequences, the Anti-SLAPP Act makes an “important … difference” to the “character”
of the litigation and the “fortunes” of the litigants—to the character of the litigation
because it allows the court to cut it off sooner, and to the fortunes of the litigants
because it spares defendants from wasting their resources on pleading, discovery,
and trial. Indeed, the Anti-SLAPP Act’s fee-shifting provision will often deter the
plaintiff from filing a fishing-expedition lawsuit in the first place. There is no doubt,
therefore, that if the Anti-SLAPP Act were enforced in state court but not federal
court, a “litigant interested in bringing meritless SLAP claims would have a significant incentive to shop for a federal forum.” United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 973 (9th Cir. 1999). Erie instructs federal
courts to avoid such an outcome.
In sum, applying the Anti-SLAPP Act in federal court would advance the twin
aims of Erie. This Court must therefore apply the Act to Plaintiffs’ D.C.-law claims.

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C. Abbas permits application of the Anti-SLAPP Act, as now authoritatively interpreted by the D.C. Court of Appeals, in federal court
Plaintiffs may argue that the D.C. Circuit’s decision in Abbas v. Foreign Policy
Group, LLC, 783 F.3d 1328 (D.C. Cir. 2015), forecloses application of the AntiSLAPP Act in federal court. It does not, because it rests on an interpretation of the
Anti-SLAPP Act that the D.C. Court of Appeals has since repudiated.
In Abbas, a party invoked the D.C. Anti-SLAPP Act in federal court. In the absence of authoritative guidance from the D.C. Court of Appeals, the D.C. Circuit interpreted the Act’s “likelihood of success” standard to be “different from and more
difficult for plaintiffs to meet” than the dismissal and summary-judgment standards
established by Rules 12 and 56. Id. at 1335. The D.C. Circuit stressed, in reaching
this conclusion, that the “D.C. Court of Appeals” had “never interpreted the … likelihood of success standard to simply mirror” the summary-judgment standard. Id.
As interpreted in Abbas, the Act conflicted with the Federal Rules, since it imposed a more stringent substantive standard than Rules 12 and 56 for reviewing the
sufficiency of a claim. Because the Rules “establish the exclusive criteria for testing
the … sufficiency of a claim in federal court,” a state provision could not replace
those criteria with a “different … and more difficult” standard. Id. at 1334–35.
The D.C. Circuit continued, however, that “an interesting issue could arise if a
State anti-SLAPP act did in fact exactly mirror” Rule 56. Id. at 1335 n.3. Would the
Act still be preempted? The court said that it “need not address” that “hypothetical”
question, because, as it had explained, “the D.C. Anti-SLAPP Act’s dismissal standard [did] not exactly mirror” Rule 56. Id.
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A year later, however, in Mann, the D.C. Court of Appeals adopted the very reading of the Anti-SLAPP Act that the D.C. Circuit had rejected. Expressly disagreeing
with Abbas, the court ruled that the anti-SLAPP and summary-judgment standards
are “the same”—that the Act’s standard does “simply mirror the standards imposed
by Federal Rule 56.” 150 A.3d at 1238 n.32. The court continued that its new interpretation “will no doubt factor into future analysis of the dicta in Abbas concerning
the applicability of the Anti-SLAPP Act … in federal courts.” Id.
In light of the D.C. Court of Appeals’ decision in Mann, the D.C. Circuit’s decision
in Abbas no longer remains good law. When a decision of the D.C. Court of Appeals
“clearly and unmistakably renders inaccurate a prior decision by the D.C. Circuit
interpreting D.C. law,” this Court is bound by the D.C. Court of Appeals’ “more recent expression of the law.” Easaw v. Newport, — F. Supp. 3d —, 2017 WL 2062851,
at *10 (D.D.C. 2017). Here, the D.C. Court of Appeals’ “more recent expression” of
D.C. law establishes that the anti-SLAPP standard mirrors the summary-judgment
standard. The D.C. Circuit’s earlier interpretation is no longer controlling, and its
application of Erie to that interpretation is no longer relevant.
Indeed, Abbas has nothing at all to say about the present case. The D.C. Circuit
expressly stated that it “need not address” the “interesting” but “hypothetical” question of how Erie applies to a state law that “in fact exactly mirror[s]” Rule 56. 783
F.3d at 1335 n.3. This Court must therefore decide afresh—under Erie, not Abbas—
whether the Anti-SLAPP Act, as the D.C. Court of Appeals has now interpreted it,
applies in federal court. For the reasons discussed earlier, it does.

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II. The Anti-SLAPP Act Requires Dismissal of Plaintiffs’ D.C.-Law Claims
To invoke the protections of the Anti-SLAPP Act, a defendant must make, in the
special motion to dismiss, “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.” § 165502(b). Once the defendant makes this showing, the court must dismiss the case
unless the plaintiff comes forward with evidence that would suffice to survive summary-judgment. Id. This special motion to dismiss clearly makes the necessary prima facie showing. Plaintiffs, however, have yet to come forward with any evidence
at all, let alone evidence that would suffice to survive summary judgment.
A. Plaintiffs’ claims arise from an act in furtherance of the right of advocacy on issues of public interest
The D.C. Anti-SLAPP Act applies to any claim that “arises from an act in furtherance of the right of advocacy on issues of public interest.” § 16-5502(b). As relevant here, “act in furtherance …” includes (1) “any written or oral statement
made … in a place open to the public or a public forum in connection with an issue
of public interest” as well as (2) “any other expression or expressive conduct that involves … communicating views to members of the public in connection with an issue
of public interest.” § 16-5501(1).
Plaintiffs’ D.C.-law tort claims “arise from” the “publication of DNC emails on
WikiLeaks” “right before the Democratic National Convention.” (Compl. ¶¶ 58, 141.)
Defendants must therefore show that the publication satisfies one of the two parts
of the definition set out above. It satisfies both.

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To begin, the publication both (1) occurred “in a place open to the public or a public forum” and (2) involved “communicating views to members of the public.” It occurred in a place open to the public or a public forum, because “websites” qualify as
“places open to the public” and as “public forums.” Mann, 150 A.3d at 1227. And it
involved “communicating views to members of the public,” since (in Plaintiffs’ own
words) the emails were “published to the entire world.” (Compl. ¶ 1.)
The publication of the emails also has an obvious “connection” with issues “of
public interest.” That is apparent from the content of the emails. For example, they
revealed the DNC’s conduct toward Senator Sanders during the Democratic presidential primaries—which are “public affair[s],” “structur[ed] and monitor[ed]” by the
state (California Democratic Party v. Jones, 530 U.S. 567, 572 (2000)). The emails
also revealed the nature of the Democratic Party’s interactions with wealthy donors,
information that should interest any citizen who wants to find out “whether elected
officials are in the pocket of … moneyed interests.” Citizens United v. FEC, 558 U.S.
310, 370 (2010). The emails likewise showed the closeness of the party’s ties to the
media, “the great interpreters between the government and the people” (Grosjean v.
American Press Co., 297 U.S. 233, 250 (1936)). That is more than enough to show a
“connection” with an “issue of public interest.”
The complaint confirms all of these points. It states that the emails received coverage in papers ranging from “The New York Times” to “Comer’s hometown newspaper.” (Compl. ¶¶ 45, 141.) The emails would not have received such widespread coverage if they had no connection with public affairs.

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Plaintiffs may respond that even if the emails as a whole have a connection with
the public interest, the specific disclosures at issue in this case do not. For several
reasons, however, such a response would be mistaken.
First, the Act turns on the character of the defendant’s speech as a whole, not on
the character of each individual statement that the defendant utters. It applies if
the “act” from which the claim arises furthers the right of public advocacy. § 165502(a). Here, the “act” from which Plaintiffs’ claims arise is the publication of a
large collection of emails. The critical question, then, is whether that single act of
publication has the requisite connection with an issue of public interest (not whether each individual email does). It does, and the Act thus applies to Plaintiffs’ claims.
See Campaign’s Memorandum in Support of Motion to Dismiss 19–21.
Second, the Act turns on the primary purpose of the defendant’s speech, not on its
ancillary effects. To distinguish “issues of public interest” from issues of private interest, courts must consider whether the defendant’s statements are “directed primarily toward” “commenting on or sharing information about a matter of public
significance,” or instead toward “protecting the speaker’s commercial interests.”
§ 16-5501(3) (emphasis added). WikiLeaks’ publication of the DNC emails was
plainly “directed primarily toward” “sharing information about a matter of public
significance”—namely, information about the misdeeds of officials at the Democratic
National Committee. (See Compl. ¶ 13.) Nobody thinks it was “directed primarily
toward” exposing Comer’s sexual orientation or Cockrum and Schoenberg’s financial
information. Again, the Act applies to Plaintiffs’ claims.

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Third, the Act’s language is in all events so sweeping that it encompasses all of
the emails published by WikiLeaks. The Act applies where the defendant engages in
speech “in connection with” an issue of public interest. § 16-5501(1) (emphasis added). “Issue of public interest,” in turn, includes any issue “related to” public affairs.
§ 16-5501(3). “In connection with” and “related to” are broad phrases. Work emails
sent by officials of a political party necessarily have a “connection” with issues that
are “related to” public affairs, even if not every single email specifically discusses
public affairs. That, once more, means that the Act applies to Plaintiffs’ claims.
Any other interpretation would make a parody of the Act’s protections. Many notable exercises of the right of free speech have involved the publication of massive
collections of leaked documents—the New York Times’ publication of the Pentagon
Papers in 1971, the International Committee of Investigative Journalists’ publication of the Panama Papers in 2015, and so on. In each such case, the collections as a
whole plainly concerned issues of profound public importance, even though some individual documents within the collection may well have discussed only private matters. Yet the publishers of these documents would lose the Anti-SLAPP Act’s protection if courts were to scrutinize the document line by line to separate out the parts
that relate to public affairs from the parts that do not. The D.C. Council could not
have intended such a result when it enacted the Anti-SLAPP Act “to protect a particular value of a high order—the right to free speech guaranteed by the First
Amendment.” Mann, 150 A.3d at 1231. The Anti-SLAPP Act applies to Plaintiffs’
claims.

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B. Plaintiffs have yet to produce any evidence at all, let alone enough evidence to allow a jury to rule for them
To overcome the Campaign’s anti-SLAPP motion, Plaintiffs must produce evidence that would suffice to survive summary judgment. Mann, 150 A.3d at 1238
n.32. In other words, they must “present evidence—not simply allegations—and
that the evidence must be legally sufficient to permit a jury … to reasonably find in
the plaintiff ’s favor.” Id. at 1221. Compare Federal Rule of Civil Procedure 56(c)(1),
which requires a party to rely on “affidavits” and other evidence—not just on allegations in the complaint—to survive summary judgment.
So far, Plaintiffs have produced no evidence at all—no affidavits, no documents,
nothing. They certainly have not produced evidence that is “legally sufficient to
permit a jury … to reasonably find” in their favor on each of the elements of their
claims. All Plaintiffs have at the moment are allegations (indeed, allegations resting
on “information and belief ”). Plaintiffs, therefore, cannot fulfill their burden under
the Anti-SLAPP Act. The Court should dismiss their D.C.-law claims for public disclosure of private facts and intentional infliction of emotional distress.
CONCLUSION
In accordance with the District of Columbia Anti-SLAPP Act, the Court should
dismiss Plaintiffs’ claims for public disclosure of private facts and intentional infliction of emotional distress.

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Case 1:17-cv-01370-ESH Document 13 Filed 09/05/17 Page 23 of 24

Dated: September 5, 2017

Respectfully submitted,
/s/ Michael A. Carvin
Michael A. Carvin (DC Bar No. 366784)
Counsel of Record
Vivek Suri (DC Bar No. 1033613)*
JONES DAY
51 Louisiana Avenue, NW
Washington, DC 20001
[phone]
[e-mail]
[e-mail]

Jeffrey Baltruzak (PA Bar No. 318156)
JONES DAY
500 Grant Street, Suite 4500
Pittsburgh, PA 15219
[phone]
[e-mail]

Counsel for Donald J. Trump for President, Inc.
(* application for admission pending)

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Case 1:17-cv-01370-ESH Document 13 Filed 09/05/17 Page 24 of 24

CERTIFICATE OF SERVICE
I certify that on September 5, 2017, I electronically filed the foregoing with the
Clerk of Court using the CM/ECF system, which will send a notice of electronic filing to all registered parties.
Dated: September 5, 2017

/s/ Michael A. Carvin
Michael A. Carvin
Counsel for Donald J. Trump for President,
Inc.