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

Filing 15

MOTION to Dismiss under the D.C. Anti-SLAPP by ROGER STONE (Attachments: # 1 Declaration, # 2 recent unpublished opinion, # 3 Text of Proposed Order)(Buschel, Robert)

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 ROGER STONE’S
SPECIAL MOTION TO DISMISS
UNDER THE D.C. ANTI-SLAPP ACT

L. Peter Farkas
(DDC Bar No. 52944)
HALLORAN FARKAS & KITTILA, LLP
1101 30TH STREET, NW
SUITE 500
WASHINGTON, DC 20007
[phone]
[e-mail]

Robert C. Buschel**
Counsel of Record
(FL Bar No. 0063436)
BUSCHEL GIBBONS , P.A.
ONE FINANCIAL PLAZA – SUITE 1300
100 S.E. THIRD AVENUE
FORT LAUDERDALE, FL 33394
[phone]
[e-mail]

Grant J. Smith**
(FL Bar No. 935212)
STRATEGYSMITH, P.A.
401 EAST LAS OLAS BOULEVARD
SUITE 130-120
FORT LAUDERDALE, FL 33301
[phone]
[e-mail]
Counsel for Roger Stone
( appearing Pro Hac Vice)
**

Defendant Roger Stone (Stone) 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 Anti-SLAPP Act (D.C. Code § 16-5504(a)) and Federal Rule of Civil
Procedure 54(d)(2), Stone 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

L. Peter Farkas
(DDC Bar No. 52944)
HALLORAN FARKAS & KITTILA, LLP
1101 30TH STREET, NW
SUITE 500
WASHINGTON, DC 20007
[phone]
[e-mail]

Robert C. Buschel**
Counsel of Record
(FL Bar No. 0063436)
BUSCHEL GIBBONS , P.A.
ONE FINANCIAL PLAZA – SUITE 1300
100 S.E. THIRD AVENUE
FORT LAUDERDALE, FL 33394
[phone]
[e-mail]

Grant J. Smith**
(FL Bar No. 935212)
STRATEGYSMITH, P.A.
401 EAST LAS OLAS BOULEVARD
SUITE 130-120
FORT LAUDERDALE, FL 33301
[phone]
[e-mail]
Counsel for Roger Stone
(** appearing Pro Hac Vice)

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 ROGER STONE’S
SPECIAL MOTION TO DISMISS
UNDER THE D.C. ANTI-SLAPP ACT

L. Peter Farkas
(DDC Bar No. 52944)
HALLORAN FARKAS & KITTILA, LLP
1101 30TH STREET, NW
SUITE 500
WASHINGTON, DC 20007
[phone]
[e-mail]

Robert C. Buschel**
Counsel of Record
(FL Bar No. 0063436)
BUSCHEL GIBBONS , P.A.
ONE FINANCIAL PLAZA – SUITE 1300
100 S.E. THIRD AVENUE
FORT LAUDERDALE, FL 33394
[phone]
[e-mail]

Grant J. Smith**
(FL Bar No. 935212)
STRATEGYSMITH, P.A.
401 EAST LAS OLAS BOULEVARD
SUITE 130-120
FORT LAUDERDALE, FL 33301
[phone]
[e-mail]
Counsel for Roger Stone
(** appearing Pro Hac Vice)

TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
INTRODUCTION ...........................................................................................................................1
FACTS ............................................................................................................................................ 4
LEGAL BACKGROUND .............................................................................................................. 5
ARGUMENT ...................................................................................................................................6
I. THE DISTRICT OF COLUMBIA ANTI-SLAPP ACT APPLIES IN FEDERAL COURT. ......6
A. The Anti-SLAPP Act is consistent with the Federal Rules. ...................................................7
B. Applying the Anti-SLAPP act in federal court advances the twin aims of Erie. ...................9
C. Abbas permits application of the Anti-SLAPP Act, as now authoritatively interpreted by the
D.C. Court of Appeals, in federal court. ............................................................................... 11
II. THE ANTI-SLAPP ACT REQUIRES DISMISSAL OF PLAINTIFFS’ D.C.-LAW CLAIMS.11
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. ....................................................................................................................17
CONCLUSION ..............................................................................................................................18

i

TABLE OF AUTHORITIES

3M Co. v. Boulter, 842 F. Supp. 2d 85 (D.D.C. 2012) ....................................................................6
Abbas v. Foreign Policy Grp., LLC, 975 F. Supp. 2d 1, (D.D.C. 2013)......................................6, 7
*Abbas v. Foreign Policy Group, LLC, 783 F.3d 1328 (D.C. Cir. 2015) ……….……6, 7, 11, 12
Boley v. Atl. Monthly Grp., 950 F. Supp. 2d 249 (D.D.C. 2013) .................................................6, 7
Burke v. Air Serv International, Inc., 685 F.3d 1102 (D.C. Cir. 2012) .......................................7, 8
Citizens United v. FEC, 558 U.S. 310, 370 (2010)........................................................................15
Cohen v. Beneficial Industries Loan Corp., 337 U.S. 541 (1949) ...............................................8, 9
*Competitive Enterprises Institute v. Mann, 150 A.3d 1213 (D.C. 2016) ................5, 8, 13, 14, 17
Diwan v. EMP Glob. LLC, 841 F. Supp. 2d 246 (D.D.C. 2012) ..................................................6,7
Dunning v. Quander, 508 F.3d 8, 10 (D.C. Cir. 2007) ....................................................................8
*Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)......................................................7, 9, 10, 12
Farah v. Esquire Magazine, Inc., 863 F. Supp. 2d 29 (D.D.C. 2012) ........................................6, 7
Forras v. Rauf, 39 F. Supp. 3d 45 (D.D.C. 2014)....................................................................5, 6, 7
Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996) ..................................................7, 9
Grosjean v. American Press Co., 297 U.S. 233 (1936) .................................................................15
Hanna v. Plumer, 380 U.S. 460, 465 (2012) .............................................................................7, 10
Hertz Corp. v. Friend, 559 U.S. 77, 85 (2010) ..............................................................................10
Sherrod v. Breitbart, 843 F. Supp. 2d 83 (D.D.C. 2012) .................................................................6
Shady Grove Orthopedic Associates v. Allstate Ins. Co., 559 U.S. 393 (2010) ..........................7, 8
United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir. 1999) 11
Walker v. Armco Steel Corp., 446 U.S. 740 (1980) .........................................................................8

ii

Wilding v. DNC Services Corp., Case No. 16-61511-CIV-Zloch (ECF No. 62, S.D. FL Aug. 25,
2017) ..............................................................................................................................................14
*Anti-SLAPP Act, D.C. Code § 16-5502 ................................................................5, 12, 13, 15, 16
Federal Rule of Civil Procedure 12 .......................................................................................5, 7, 11
Federal Rule of Civil Procedure 56 ...........................................................................6, 8, 11, 12, 17
Federal Rule of Civil Procedure 54 .................................................................................................8

iii

INTRODUCTION
Plaintiffs claim that Roger Stone committed a tort by allegedly conspiring with others to
speak about them. They allege that Russian hackers stole emails from the Democratic National
Committee, and that Stone later conspired with others to strategically publish those emails on
WikiLeaks. Plaintiffs do not claim that Stone himself participated in the hack; rather, they claim
that the mere dissemination of the information is tortious. Plaintiffs seek, in other words, to hold
Stone 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 § 165502)—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.
This case is nothing more than a group of admittedly liberal attorneys formed after the
2016 election still smarting that their preferred candidate for president lost the election.1 They
went in search of plaintiffs in order use the judicial system as a means to launch their own
private investigation. The group purporting to represent these hand-picked plaintiffs is a group
with a political agenda. What the Plaintiffs have pled is exactly what the anti-SLAPP statutes are
designed to protect against -- a created narrative out of thin air and seek, by nothing more than
unsubstantiated regurgitation of speculative news reports, to manufacture a conspiracy where
there is none. While groups of like-minded individuals have every right to espouse their views
under the protection of the law, they do not have the right to use the court system to accomplish
their goals in a way that is retaliatory. SLAPP suits masquerade as ordinary lawsuits, the
conceptual features which reveal them as SLAPP’s are that they are generally meritless suits
1

https://unitedtoprotectdemocracy.org/about/
1

brought by large private interests to deter common citizens from exercising their political or legal
rights or to punish them for doing so.
The Act was enacted to mitigate the chilling effect of such lawsuits directed against freespeech and petitioning activities. It establishes a procedure, followed by federal courts as well as
D.C. courts, for prompt review and disposal of state law claims against a person arising from an
act, in furtherance of the person’s right of petition or free speech under United States or District
of Columbia law in connection with issues of serious public concern. Under the 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. Under the law, in order to survive the Defendant’s special motion to dismiss,
Plaintiffs have the burden of establishing a probability of success on their claims as explained
below, plaintiffs cannot possibly do so.
The Plaintiffs have no independent knowledge about any allegation they put on paper and
yet, they expect the Defendants to prove that they did not conspire. This is not the way our
system of justice has been designed to work. A Plaintiff must allege or show they suffered harm
at the hands of a Defendant. The Plaintiffs in the instant case do not allege even once, that the
Defendant had anything to do with acquiring the information they allege is now in the public
domain. In fact, they do not even allege that the Defendants disseminated the information.
On all of the matters contained in this lawsuit Stone has been an open book. He has published
each communication he had with a persona using the screen name, “Guccifer 2.0” and he openly
shared that he had a friend who talked to Julian Assange and that his friend subsequently related
to Stone the subject matter of the discussion they had -- nothing more. Plaintiffs have been
affected by a storyline perpetuated by a constant barrage of media and politicians that do not

2

want the truth to be known, they want their narrative to be true. This is a conclusion searching
for evidence, not evidence leading to a conclusion. Each public pronouncement by Stone was
preceded by the actual party in control of the allegedly hacked information announcing that they
had the information, and they were going to release that information to the public. Stone
participated in the after-the-fact public discourse on matters that were of great national
importance. Stone did not at any time comment in any way on any matter released by third
parties that was potentially private or personal to any of the Plaintiffs.
The institution of a suit against the Trump Campaign and Roger Stone is designated to do
nothing more than make them think twice about their public participation in the future. Plaintiffs
cannot sue anyone they want just because they do not like their expressed political views. As is
apparent in this case, Plaintiffs are suing these Defendants because they have no way to possibly
sue or hold accountable the actual people or entities that may have caused them harm. Our
justice system demands more before someone is subjected to the highly intrusive and very
expensive process that is litigation. Plaintiffs cannot posit a theory with no independent facts or
knowledge and then try to prove it by obtaining the records of a defendant. The Plaintiffs must
make a prima facie showing that Roger Stone had something to do with the harm they are
alleging. They have not met this standard.
The Anti-SLAPP Act governs the resolution of D.C. law claims in federal court. Protect
Democracy, the organization of networked lawyers, has stated their purpose is to conduct a
private investigation and cannot wait for U.S. law enforcement and intelligence services to do
their job methodically and appropriately.2 As Plaintiffs’ claims for public disclosure of private

2

“. . . plaintiffs cannot wait for other law enforcement and intelligence investigations into
coordination between Russia and Trump associates to run their course. . .”
https://unitedtoprotectdemocracy.org/privacylawsuit/
3

facts and intentional infliction of emotional distress trigger the statute’s protections, 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.3
FACTS
On July 22, 2016, days before the Democratic Convention met to nominate Hillary
Clinton for President of the United States, WikiLeaks published a collection of thousands of
work emails sent and received by officials at the Democratic National Committee (“DNC”).
(Compl. ¶ 36.) As a result, the public learned important information about the presidential
campaign and about the Democratic Party.
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 then President Barack Obama.
(Compl. ¶¶ 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 “deduce”) that “he is gay.” (Compl. ¶¶ 19, 45.)
Plaintiffs sued Donald J. Trump for President, Inc. (“the Campaign”) and Roger Stone
(“Stone”) over the publication of the emails. They allege that “elements of Russian intelligence”
(on their own, without involvement of Stone) hacked into the DNC’s email systems “in July
2015” and “maintained that access” over the course of the next year. (Compl. ¶ 76.) They say
3

The issues presented in this case 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.
4

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’s chances of winning the Presidency. (Compl. ¶ 19.) They say that this conspiracy
covered only the “release” of the emails, not their initial acquisition or transfer to WikiLeaks.
(Compl. ¶ 137.)
Plaintiffs raise claims under D.C.-law for public disclosure of private facts and
intentional infliction of emotional distress. Defendant Roger Stone filed a motion to dismiss
under Rule 12(b) contemporaneously with this special motion to dismiss.
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, 1231 (D.C. 2016);
Forras v. Rauf, 39 F. Supp. 3d 45, 52 (D.D.C. 2014). SLAPP suits deter speech even if they are
dismissed, because they punish individuals through onerous discovery and perhaps, trial.
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.” § 16-5502(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.

5

The District Court opinions have waivered on the applicability of the Anti-SLAPP statute
since this Circuit’s opinion in Abbas v. Foreign Policy Group, LLC, 783 F.3d 1328 (D.C. 2015).4
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). Based upon Plaintiffs’ far-out claims, with no
nexus to Roger Stone but mere correlations to selected events, Plaintiffs will not likely meet their
evidentiary burden at the pleadings stage or at summary judgment. Indeed, Stone presents an
expert’s declaration to show at the outset that Plaintiffs’ accounts are obstacles too high to clear.
(Decl. Griffith). In addition, a defendant who prevails on the anti-SLAPP motion may recover
“the costs of litigation, including reasonable attorney fees.” § 16-5504(a).
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.
From the 2011 enactment of the D.C. Anti-SLAPP Act through 2015, courts in this
Circuit found the Anti-SLAPP Act to be generally applicable at least a half-dozen times in cases
4

See, e.g., Forras v. Rauf, 39 F. Supp. 3d 45, 51-52 (D.D.C. 2014) (applying statute); Abbas v.
Foreign Policy Grp., LLC, 975 F. Supp. 2d 1, 9-11 (D.D.C. 2013) (same), aff’d in part on other
grounds, 783 F.3d 1328 (D.C. Cir. 2015); Boley v. Atl. Monthly Grp., 950 F. Supp. 2d 249, 254
(D.D.C. 2013) (same); Farah v. Esquire Magazine, Inc., 863 F. Supp. 2d 29, 36 n.10 (D.D.C.
2012) (same); Diwan v. EMP Glob. LLC, 841 F. Supp. 2d 246, 247 n.1 (D.D.C. 2012) (same);
see also Sherrod v. Breitbart, 843 F. Supp. 2d 83, 85 (D.D.C. 2012) (finding statute to be
substantive but not retroactive), aff’d, 720 F.3d 932 (D.C. Cir 2013); but see 3M Co. v. Boulter,
842 F. Supp. 2d 85, 96 (D.D.C. 2012) (declining to apply statute in diversity).
6

where jurisdiction arose out of diversity among the parties. See Forras, 39 F. Supp. 3d at 51-52;
Abbas, 975 F. Supp. 2d at 9-11; Boley, 950 F. Supp. 2d at 254; Farah, 863 F. Supp. 2d at 36 n.10;
Sherrod, 843 F. Supp. 2d at 84-86 & n.4; and Diwan, 841 F. Supp. 2d at 247 n.1. But the D.C.
Circuit issued its opinion in Abbas, affirming the district court's dismissal of plaintiff's claim
under Rule 12(b)(6), but reversing on the question of the application of Anti-SLAPP protections
for defendants in federal courts. 783 F.3d at 1333-39.
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 statute 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 (2012). 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. at 428.
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
7

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.
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 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. Burke, 685 F.3d at 1108 (quoting Walker v. Armco Steel Corp., 446 U.S. 740, 752 (1980)).
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)). And nothing in the Rules
prohibits courts from awarding fees; to the contrary, Rule 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

8

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. The Court should therefore hold that the D.C. Anti-SLAPP Act once against applies in
diversity cases.
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 forumshopping. Gasperini, 518 U.S. at 428. Applying the Anti-SLAPP 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.

9

Applying the Anti-SLAPP Act in the District’s local courts but not in its federal courts
would produce precisely the kind of discrimination, incongruence, 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; a discrimination which citizens from other states
were meant to be protected. See Hertz Corp. v. Friend, 559 U.S. 77, 85 (2010). 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 they and their adversaries happen to
live or their adversaries’ resources or ambitions). Erie directs courts to avoid this kind of
disparity.
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 such as 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 the necessity of

10

squandering their resources on pleading, discovery, and trial. Indeed, the Anti-SLAPP Act’s feeshifting 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 Erie’s twin aims of
Erie. This Court must therefore apply the Act to Plaintiffs’ D.C.-law claims.
C. Abbas permits application of the Anti-SLAPP Act, as now authoritatively interpreted
by the D.C. Court of Appeals, in federal court.
Plaintiffs perhaps will 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 Anti-SLAPP 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
11

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 antiSLAPP 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.
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.
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.” § 16-5502(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.” § 16-6502(b). As relevant here, “act in
12

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.
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.)
In addition to the dissemination of Plaintiffs’ emails as part of the WikiLeaks tranche,
Plaintiffs cite Roger Stone’s public social media postings on Twitter in their complaint. All of
these postings are political speech, commentary, or punditry.
145. In August and September 2016, Defendant Stone and
Guccifer 2.0 engaged in an exchange of direct messages over
Twitter.
146. On August 12, 2016, Guccifer 2.0 released documents
obtained from the DCCC and tweeted: “@RogerJStoneJr thanks
that u believe in the real #Guccifer2.” Guccifer 2.0 subsequently

13

tweeted “paying u back,” in reply to a tweet from Defendant
Stone.5
147. On August 18, 2016, Defendant Stone stated in a C-SPAN
interview that he was in touch with Assange “through an
intermediary.”
148. On August 21, 2016, Defendant Stone tweeted: “Trust me, it
will soon the [sic] Podesta’s time in the barrel. #CrookedHillary.”
149. In mid-September, Stone said on a radio interview that he
expected “Julian Assange and the Wikileaks people to drop a
payload of new documents on a weekly basis fairly soon.”
150. On October 1, 2016, Defendant Stone tweeted: “Wednesday
@HillaryClinton is done.”
151. Two days later, on October 3, 2016, Defendant Stone tweeted:
“I have total confidence that @wikileaks and my hero Julian
Assange will educate the American people soon # LockHerUp.”
152. Then, on October 4, 2016, Defendant Stone tweeted:
“Payload coming. #Lockthemup.”
These are all remarks about the Presidential Election 2016. It is political speech in a
public forum communicating views on those public issues. See Mann, 150 A.3d at 1227. This
lawsuit is a SLAPP suit meant to deter that political speech. The Trump campaign in its special
motion to dismiss refers to emails discussing political matters within the DNC. Reference to that
political controversy demonstrates the applicability of the Anti-SLAPP statute as well for Roger
Stone. In fact, the controversy within the Democratic National Committee was the subject of a
lawsuit recently dismissed in the Southern District of Florida involving allegations the DNC was
in cahoots with the Clinton campaign and sought to tip the scales in her favor in the Democratic
primaries. See Wilding v. DNC Services Corp., Case No. 16-61511-CIV-Zloch (ECF No. 62, S.D.

Roger Stone’s posting to “Guccifer 2.0” would be contextually relevant, but Plaintiffs do not
share Stone’s comments or reasoning.
5

14

FL Aug. 25, 2017). The publication of Stone’s “tweets” and the DNC’s emails has an obvious
“connection” with issues “of public interest.” 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)).
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.
The Act turns on the character of the defendants’ 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. § 16-5502(a). In this case, 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.
The Act also 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

15

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.) No allegation is made that the dissemination of Plaintiff
Comer’s emails were “directed primarily toward” exposing his sexual preference or Plaintiffs
Cockrum and Schoenberg’s emails were to expose their financial information of Plaintiffs
Cockrum and Schoenberg. Again, the Act applies to Plaintiffs’ claims.
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,
WikiLeaks’ publication of United States diplomatic cables in 2010, 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

16

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.
B. Plaintiffs have yet to produce any evidence at all, let alone enough evidence to allow a
jury to rule for them.
To overcome Stone’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 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 incriminating
documents, nothing. Even though it is not his burden, Roger Stone has provided sworn evidence
that demonstrates that Plaintiffs will not be able to produce the evidence sufficient to overcome a
special motion to dismiss.
Plaintiffs would have to prove by sworn evidence that Russian hackers broke into the
DNC computers that necessarily had to store the data in question in Washington, D.C. They
have not yet alleged properly that the servers in question were physically located in the District.
(See Stone’s Motion to Dismiss Rule 12). The two questions expert Virgil Griffith was asked
was: 1) Are the allegations of the complaint clear enough to determine if it is possible to identify
the hackers of a databased described as belonging to the Democratic National Committee; and,
2) even if adequately described can a hack be traced back to a particular individual or
individuals? As to the first question, the Plaintiffs did not make allegations clear enough to
17

determine if the Plaintiffs are even on the right track. Meaning, are they even describing a
computer hacking of a computer database server? The answer is, no. (Decl. Griffith ¶ 9). As to
the second question, it would be near impossible for private plaintiffs to sufficiently prove that a
hack occurred by certain individual Russians or tied to Russian intelligence. (Decl. Griffith ¶¶911). If the hack of the DNC’s database cannot be linked to Russian hackers and consequently
Russian intelligence, then every other conclusion in the complaint falls to the side. This would
mean some other individual or group gave the DNC’s data to WikiLeaks. This fact would
exonerate Roger Stone. It also emphasizes the nature of Stone’s public social media posting –
political speech.
Consequently Plaintiffs 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 conclusory allegations. 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.
Dated:

September 5, 2017

Respectfully submitted,
/s/ Robert Buschel
Robert C. Buschel

18

L. Peter Farkas
(DDC Bar No. 52944)
HALLORAN FARKAS & KITTILA, LLP
1101 30TH STREET, NW
SUITE 500
WASHINGTON, DC 20007
[phone]
[e-mail]

Robert C. Buschel**
Counsel of Record
(FL Bar No. 0063436)
BUSCHEL GIBBONS , P.A.
ONE FINANCIAL PLAZA – SUITE 1300
100 S.E. THIRD AVENUE
FORT LAUDERDALE, FL 33394
[phone]
[e-mail]

Grant J. Smith**
(FL Bar No. 935212)
STRATEGYSMITH, P.A.
401 EAST LAS OLAS BOULEVARD
SUITE 130-120
FORT LAUDERDALE, FL 33301
[phone]
[e-mail]

Counsel for Roger Stone
(** appearing Pro Hac Vice)

19

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/ Robert C. Buschel
Robert C. Buschel
Counsel for Roger Stone