Drew Shenkman is an Associate and Charles Tobin a Partner in our Washington D.C. office

A District of Columbia judge ordered the first dismissal under the jurisdiction's new anti-SLAPP law, finding at the start of a defamation lawsuit that a firefighter failed to show a "likelihood of success" in challenging a television broadcast about his high levels of overtime earnings.

Judge Rufus G. King III of the D.C. Superior Court applied the new anti-SLAPP statute - which stands for "strategic lawsuits against public participation" - retroactively and granted the dismissal motion brought by Fox Television station WTTG. Judge King held that fire department Lt. Richard Lehan failed to meet his burden to show the station was at fault or that he suffered any damages.

The lawsuit arose out of WTTG's January 2011 report on budget overruns in the D.C. Fire and Emergency Medical Service. While examining the District's overtime budget, a committee of the D.C. Council received a report that listed Lt. Lehan as the service's largest overtime earner in fiscal 2008 and in the top 10 largest in fiscal 2009 and 2010.

On top of his $90,000 annual salary, Lehan had earned between $66,000 and $119,000 in overtime each of those years, the council committee's records showed. WTTG's report on the committee's probe highlighted Lehan's earnings, and reported his comments that he worked the overtime to support a large family and simply took the assignments given to him. The station also reported that, according to unnamed sources, Lehan and his brother, also a firefighter, were in charge of the computer system that assigned overtime.

In June 2011, Lehan sued for defamation and defamation per se. He alleged that the station's figures were inaccurate and that the report's use of phrases like "racked up" and "month-after-month" were defamatory. He also alleged that the report that he and his brother controlled the assignment of overtime was false.

The station filed a special motion to dismiss under the District's anti-SLAPP statute, D.C. Code §16-5501, et seq., enacted in March 2011. D.C. is the 29th jurisdiction with a law permitting early challenges to SLAPP lawsuits. Under the D.C. statute, if a defendant establishes the lawsuit arose out of "acts in furtherance of the right of advocacy on issues of public interest," the burden shifts to the plaintiff to demonstrate a "likelihood of success" on the merits. If the plaintiff fails, the statute requires the court to dismiss the lawsuit and the judge may award reasonable attorneys' fees.

Lehan vigorously challenged the statute's application on retroactivity grounds, although his lawsuit came after the statute was enacted. He argued the law provided new "substantive" rights because, in his view, it increased a defamation plaintiff's burden. Therefore, he argued, since the story was broadcast in January and the statute enacted in March, it could not be applied retroactively.

WTTG responded that under controlling D.C. law, retroactivity simply turns on whether the statute made it harder for Lehan to win the lawsuit. WTTG argued that as Lehan had the same defamation burdens before the statute and after - falsity, defamatory content, lack of privilege, actual malice and damages - the statute did not alter his chances of prevailing and therefore applied to this case.

Judge King:

  • firmly agreed with WTTG that the statute applied retroactively, noting that "the burden of proof on the plaintiff does not change. It simply is accelerated a little bit, in part."
  • held that the anti-SLAPP statute clearly covered WTTG's reporting: "Certainly, a publication that describes how the District Government is spending its money would be a matter of public interest and subject to comment."
  • found that the distinction between a public and a private figure would not "make the critical difference in this case" because the reporter's affidavit demonstrated that Lehan could not even show "ordinary negligence" in the reporter's reliance on public records and high-level sources in the fire department
  • alternatively found that Lehan is a public figure, his claim is governed by actual malice, and that fault "cannot be shown by a clear and convincing standard or even a negligence standard"
  • held that Lehan failed to demonstrate a likelihood that he could establish damages, not even emotional harm


"[T]he allegation is not that he was falsely reporting his hours. It was that he simply worked a lot of hours when in the view of some, he should not have been working those hours. That is almost not even embarrassing in the normal daily run of news on the operations of the city government."

Holland & Knight represented Fox Television station WTTG in this matter.

www.hklaw.com

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