SUPERIOR COURT OF THE DISTRICT OF COLUMBIA Division - x ZURI BERRY, Plaintiff Case No. 2020 CA 004366 B v. Hon. Fern Flanagan Saddler CURRENT PUBLICATION, ev. al. Next Court Date: January 15, 2020 Defendants Event: Initial Scheduling Conference - x MEMORANDUM IN SUPPORT OF DEFENDANTS’ SPECIAL MOTION TO DISMISS PURSUANT TO THE D.C. ANTI-SLAPP ACT, OR, IN THE ALTERNATIVE, PURSUANT TO D.C. SUPER. CT. RULE 12(B)(6) Charles D. Tobin (D.C. Bar No. 455593) Alia L. Smith (D.C. Bar No. 992629) 1909 K Street, NW, 12th Floor Washington, DC 20006 Telephone: (202) 661-2200 Fax: (202) 661-2299 [email protected] [email protected] Counsel for DefendamsTABLE OF CONTENTS Page INTRODUCTION 1 BACKGROUND 1 A. Plaintiff's Relationships with Defendants Letese’ Clark and Alana Wise 2 B. Plaintiff's Relationships with Other Women at WAMU 2 C. The July 1, 2020 Meeting and Afiermath 3 D. Article in American University publication Current 4 E. Plaintiff's Claims 5 ARGUMENT 6 1 THE ANTI-SLAPP ACT APPLIES HERE 6 A. The Purpose and Application of the Anti-SLAPP Act 6 B. The Statements at Issue Here Were Made “In Furtherance of the Right of Advocacy on Issues of Public Interest” 7 I PLAINTIFF CANNOT MEET HIS BURDEN TO SHOW THAT HE IS LIKELY TO SUCCEED ON THE MERITS 9 A. The Challenged Statements Are Not Actionable in Defamation 9 1, The “Clark Statements” Are Non-Actionable 10 2. The “Wise Statements” Are Non-Actionable 14 3. The “Simons Statements” Are Non-Actionable 15 4. Other “Current Statements” Are Non-Actionable 16 B. _ Plaintiff Has Made No Actionable Allegations Against Defendants Drizin and Everhart 7 C. Plaintiff's Parasitic Claims for “False Light” and Tortious Interference with Current and Prospective Business or Contractual Relationships” Also Fail 18 I IN THE ALTERNATIVE, PLAINTIFF'S COMPLAINT SHOULD BE DISMISSED FOR FAILURE TO STATE A CLAIM 8 CONCLUSION. 20TABLE OF AUTHORT Page(s) Cases Abbas v. Foreign Policy Group, LLC, 975 F. Supp. 2d 1 (D.D.C. 2013) 9 Air Wisconsin Airlines Corp. v. Hoeper, 571 US. 237 (2014) 10 Anderson v. School Board, 2020 U.S. Dist. LEXIS 94645 (E.D. Va, May 29, 2020) i Armstrong v. Thompson, 80 A3d 177 (D.C. 2013) 9 Arpaio v. Cottle, 404 F. Supp. 34 80 (D.D.C. 2019) 18 Bauman v. Butowsky, 377 F. Supp. 3d | (D.D.C. 2019) 18, Blodgett v. University Club, 930 A.2d 210 (D.C. 2007) 9, 18, 20 Boley v. Atlantic Monthly Group. 950 F. Supp. 2d 249 (D.D.C. 2013) 7 Carozza v. Blue Cross & Blue Shield of Massachusetts, 14 Mass. L. Rep. 88 (Mass. Super. 2001). 15 Close It! Title Services, Ine. v. Nader, Case No. 2018 CA 005391B (D.C. Super.) (Ex. B) 8 Competitive Enterprise Institute v. Mam, 150 A.3d 1213 (D.C. 2016) 6,7 Crowley v. North America Telcommunication Association, 691 A.2d 1169 (D.C. 1997) 7 Doe No. I v. Burke, 91 A3d 1031 (D.C. 2014) 6 Dragulescu v. Virginia Union University, 223 F. Supp. 3d 499 (E.D. Va. 2016) 14Elliott v. Healthcare Corp., 629 A.2d 6 (D.C. 1993) Farah v. Esquire Magazine, 736 F.3d 528 (D.C. Cir. 2013). Farah v. Esquire Magazine, Inc., 863 F. Supp. 2d 29 (D.D.C. 2012) ..cssosnnnnnnnnnnnnnnnn Fridman v. Orbis Business Imelligence Lid., 229 A.3d 494 (D.C. 2020) Guilford Transporation Industries v. Wilner, 760 A.2d 580 (D.C. 2000) Hays v. Gagliardi, 2017 Cal. App. Unpub. LEXIS 7985 (Nov. 21, 2017) Howard University v. Wilkins, 22 A3d 774 (D.C. 2011) Hupp v. Sasser, 490 S.E.2d 880 (W. Va. 1997). Kerr v. Marshall University Board of Governors, 824 F.3d 62 (4th Cir. 2016) Lewis v. Melavish, 673 F. Supp. 608 (D.D.C. 1987) Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287 (D.C. Cir. 1988) Mallory v. § & § Publishers, 168 F. Supp. 3d 760 (E.D. Pa, 2016) Marshall v. Allison, 554 F. App’x 20 (D.C. Cir. 2014) Mastro v. PEPCO, 447 F.3d 843 (D.C. Cit, 2006) ....ocosnsnnsnninnnnnnnnen Meyer v. Holley, 537 U.S. 280 (2003). Mills v. Jowa, 924 F. Supp. 2d 1016 (S.D. lowa 2013) it 20 1,7 9,12 TT 20 u it 10 15 18 20 18 WMolddea v. N.Y. Times Co., 22 F.3d 310 (D.C. Cir, 1994) Ollman v. Evans, 750 F.2d 970 (D.C. Cir. 1984). Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986) Rosen v, AIPAC, Inc. 41 A3d 1250 (D.C. 2012) Ruf v. American Broadcasting Companies, 2000 U.S. Dist. LEXIS 22791 (D.D.C. Feb. 22, 2000) Saudi American Public Relations Affairs Committee v. Institute for Gulf Affairs, 2020 D.C. App. LEXIS 463, — A.3d— (D.C. Dec. 10, 2020) Sieber v. Vogel, No. 2020 CA 001596B (D.C. Super. June 25, 2020) (Ex. A) Smith v. D.C., 399 A.2d 213 (D.C. 1979) TS Media, Ine. v PBS, 2018 WL 2323233 (D.C. Super. 2018). Turner v. Wells, 198 F. Supp. 3d 1355 (S.D. Fla. 2016) Ulrich v. Moody's Corp., 2014 U.S. Dist. LEXIS 145898 (S.D.N.Y. Mar. 31, 2014) Wentworth v. Hemenway, 2019 Cal. App. Unpub. LEXIS 3880 (June 5, 2019). Zimmerman v, Al Jazeera America, LLC, 246 F. Supp. 3d 257 (D.D.C. 2017) Statutes D.C. Anti-SLAPP Act, D.C. Code § 16-5502 20 67,8 tT 16,17 passimOther Author ies DC. Superior Court Rule 12(b)(6) Robert D. Sack, Sack on Defamation § 2:4.1INTRODUCTION Plaintiff in this SLAPP lawsuit,! a senior manager in the newsroom of public radio station WAMU, has brought this defamation lawsuit against a group of women journalists who reported his unacceptable behavior at work. Lawsuits like these ~ aimed at chilling speech on matters of public interest ~ are precisely what the D.C, Council outlawed when it enacted the D.C. Anti- SLAPP Act, D.C. Code § 16-5502 (the “Act”) As the Act provides, all Defendants bring this “special motion” to dismiss at the outset of the case, Defendants ask the Court to prompily reject this action, targeted directly at First Amendment-protected expressions on a matter of public interest, as Plaintiff cannot meet his burden under the Act to show that he is “likely to succeed” on the merits. This lawsuit has no merit as all statements he challenges are non-actionable opinions, are substantially true, and/or ‘were not published by the Defendants For these reasons, the Court should grant Defendants’ anti-SLAPP motion, dismiss this action with prejudice, and award the Defendants their attomeys’ fees. See id. § 16-5505(a) (permitting moving party to recover attorneys’ fees in “SLAPP” cases). In the alternative, the Complaint should be dismissed pursuant to Rule 12(b)(6) of the D.C. Superior Court rules. BACKGROUND Plaintiffis an African-American man who became the Senior Managing Editor of WAMU in January 2019. Compl. {{]3, 5. WAMU is the public radio station serving the D.C. area; it is owned and operated by American University. Compl. 45. " ASSLAPP” is a Strategic Lawsuit Against Public Participation brought in violation of D.C. Code § 16-5501 ef seq. to chill speech “in connection with an issue of public interest.” See Fridman v. Orbis Bus. Intelligence Ltd., 229 A3d 494, 502 (D.C. 2020) (D.C. Anti-SLAPP Act “created substantive rights which accelerate the often lengthy processes of civil litigation” in order “to mitigate ‘the amount of money, time, and legal resources’ that defendants” must expend to defend the “exercise of their constitutional rights”)A, Plaintiff’s Relationships with Defendants Letese’ Clark and Alana Wise Plainti “supervised a staff of four to six women.” Id. 5. Among these were Defendants Letese’ Clark and Alana Wise, both Black women. Id. According to Plaintiff, he did not have a positive relationship with either one. He spends multiple pages of his lengthy Complaint describing them in hostile terms. See, ¢.g., id. $f] 7-8, 11-12, 19, 21-23. Although Plaintiff alleges that he reported his performance concems to supervisors and others at WAMU, he concedes that no disciplinary action was taken against either woman. See, e.g., id. § 14 (stating that Plaintiff's ‘or disagreed with him that “action be taken” against Ms, Clark); id. 4} 24 (no “dis supe measures” taken against Ms, Wise). Primarily because of Plaintiffs abusive, overbearing and condescending behavior, each woman left WAMU in early 2020. See Decl. of Letese’ Clark 4] 16-17 & Ex. 1 (“I departed WAMU ..... after continued mistreatment by Zuri Berry”); Decl. of Alana Wise Decl. § 17 (“I quit solely because of Zuri Berty”.) Both women later submitted complaints about him to American University’s Human Resources department. Compl. {]38. In her complaint, Ms. Clark reported that Plaintiff “weaponized [her] performance review,” “questioned” her character, “constant{ly] micromanag{ed]” her, and was a “poor communicat[or].” Clark Decl. Ex. 1. Ms. Wise, in hers, reported that she was “continuously berated, my work belittled, and my credentials questioned” by Plaintiff “in ways that were not only unproductive, but ultimately untrue.” Wise Decl., Ex. 2 (also noting “bullying and .. . lack of leadership” by Plaintiff) B. Plaintiff's Relationships with Other Women at WAMU Other women at WAMU had similar problems with Plaintiff, Sasha-Ann Simons was a the WAMU newsroom until March 2020 when she left to work at 1A, a WAMU news reporter i program produced on a different floor from and with a different staff than the main WAMU newsroom, Decl, of Sasha-Ann Simons § 1. She left the WAMU newsroom because she felt fiustrated and uncomfortable with Plaintiff and the generally “toxic” newsroom environment thathe enabled. /d. 18, She wrote a memo to Plaintiff's boss, the News Director, describing how she “escaped this newsroom deliberately” and detailing PlaintifY"s abusive behavior, especially towards diverse women journalists (Simons Decl., Ex. 1): [In 2019], I watched the lack of support for women journalists of color continue Several talented Black and Asian journalists have left the organization -- mainly the newsroom in the past 12 months alone. Many of them, I call friends. Their growth was stifled, their judgment questioned -- at times they were even berated in front of others, their credentials in the industry were criticized, their ideas shot down, and they were all micromanaged by the same person. Zuri Berry is well aware of all the complaints that have been made with HR and with Jeffrey (Katz, the News Director] about his management style. [Other supervisors] are also aware that Zuri has been problematic. If his direct reports dared speak up to him about his unfair treatment, like Letese, Zuri would punish with your performance review as his weapon. These women cried out for help, and yet nothing was done then and still hasn’t been done. Likewis , Plaintiff admits in his Complaint that he also had issues with WAMU editors Carmel Delshad and Mary Tyler March, Compl. ]40. Ms. Delshad, a woman of color and an editor at WAMU, felt “demeanfed] and humiliatefed)” by Plaintiff when, with no precedent, he asked her to take notes in ameeting, See Decl, of Carmel Delshad 4. Ms. March also felt publicly embarrassed when — on multiple occasions ~ Plaintiff broadcast demeaning and belittling comments to her on the newsroom communication system. See Decl. of Mary Tyler March Decl 914-5. She complained to Human Resources (“HR”) about this behavior. Jd. 6. Plaintiff also acknowledges that other women at WAMU, particularly women of color, similarly felt that the newsroom was a “toxic” environment and left the station (or threatened to leave) as a result, see Compl. {| 13 (Ashley Lisenby), ¥ 16 (Elly Yu and Jenny Abamu), although he denies that they felt this way because of hi C. The July 1, 2020 Meeting and Aftermath Afier the departures of Defendants Ms. Clark and Ms. Wise from the station, the additional departures of Ms. Yu and Ms. Abamu, and also after Defendant Ms. Simons fled the newsroom,WAMU “held a video conference/meeting to discuss the work atmosphere” relating to “the departure of women of color at the station.” Jd. §] 25. At the meeting, the News Director read Ms. Simons’ memo, and the participants discussed their general “dissatisfaction,” which included widespread concems that they expressed about Plaintiff by name. /d. 26; Simons Decl. 21 & Ex.1 After this meeting, Plaintiff sent an apology email to staff. See Simons Decl., Ex. 2. In it, among other things, Plaintiff admitted that: © “Tfailed you and I failed the women of color in our newsroom” and “I've contributed to [their] exodus.” These “failures are embarrassing” and he regrets “not doing more to retain. .. women of color.” * Many of the “complaints” about his behavior were “raised with” him, and that he was attempting “to change [his] approach.” Id, Based (at least in part) on complaints submitted against him by Ms. Clark, Ms. Wise, and Ms. Simons, WAMU “stripped” Plaintiff of his direct reports and initiated an investigation into his conduct, See Compl. $29. The AU Human Resources Department informed him that it had “received complaints about his behavior and conduct with other staff members” as well. /d. ‘38. The HR Department later issued Plaintiff a “Notice of Complaint” and placed him on administrative leave. The Notice contained examples of various ways in which Plain fFallegedly created a hostile environment, including by “dismissing the ideas of women,” “yelling” at and “raising his voice with women,” “making condescending comments,” “micromanaging,” “hovering over a female employee,” and “bullyfing],” among other things. Id. D. Article in American University publication Current On July 20, 2020, Current — “an editorially independent, nonprofit service of American University that reports on public media in the United States” ~ published an article, “WAMU Licensee Investigates Editor Blamed for Departures of Women of Color” (the “Article”). Compl131; Deel. of Julie Drizin Decl. 4; Decl. of Karen Everhart Decl., Ex. 1 (Article). It was written and reported by Defendant Sasha Femandez. In relevant part, the Article reports that: © Plai iff “has been the subject of multiple complaints from staffers.” * His conduct is being investigated by the station * “Three female journalists of color” said that their decisions to leave the newsroom “were prompted by Berry’s behavior toward them.” Specifically, “they shared experiences of feeling undermined, micromanaged, and mistreated.” © “One of the reporters and another WAMU employee . . . said they had filed complaints with Human Resources about” Plaintiff. © Current reached out to the station, which declined to comment, and to Plaintiff directly, who did not respond The Article also quoted from Plaintiff's apology email, Everhart Decl., Ex. 1 (Article), Simons Decl., Ex, 2 (apology email). E. Plaintiff's Claims Plaintiff now brings defamation claims against American University,® Ms. Clark, Ms. Wise, Ms. Simons, Ms. Fernandez, Karen Everhart (managing editor of Current) and Julie Drizin (executive director of Current). He also brings parasitic claims for “false light” and “tortious interference with current and prospective business or contractual relationships” based on the Defendants’ same alleged, protected expressions. Despite his lengthy complaint, the statements he challenges as false and defamatory boil down to these © Against Ms. Clark: Plaintiff claims that she defamed him “when she falsely reported to... Currenf” and to “American University’s Human Resources and Jefiey Katz that Plaintiff. . . dismissed her ideas at meetings, made condescending and snide remarks to women, micromanaged her and hovered over her desk, used > “Current Publication” is also named as a Defendant, Current is not a legal entity and therefore not a proper defendant. Its interests are being represented by its publisher, American University.[her] PMP Year-End review to bully her, and engaged in behavior detrimental to her.” Compl. | 43 © Against Ms. Wise: Plaintiff claims that she defamed him “when she falsely reported to Current” and to“ American University’s Human Resources and Jeffrey Katz that Plaintiff... yelled at her and raised his voice at her.” Id. © Against Ms. Simons: Plaintiff claims she defamed him “when she accused him in her letter of being the sole reason for the departure of four women of color from WAMU and why the culture was toxic.” Id. © Against Current (and its employees and publisher): Plaintiff claims Current through” Ms, Fernandez, Ms. Everhart, and Ms. Drizin) “recklessly published an article about a personnel matter with false accusations against Plaintiff Berry.” Plaintiff does not identify what statements in the Article are allegedly false and defamatory, other than those he attributes to the individual defendants noted above. Because Plaintiff's claims here are a being used as weapon aimed to chill, silence and punish Defendants’ speech on a matter of public interest, Defendants now move this Court for dismissal under the D.C. Anti-SLAPP Act, D.C. Code § 16-5502, ef seq. ARGUMENT IL THEANT SLAPP ACT APPLIES HERE A. The Purpose and Application of the Anti-SLAPP Act Enacted in 2010, the D.C. Anti-SLAPP Actis intended to “protect the targets” of “Strategic Lawsuits Against Public Participation.” SLAPP lawsuits “masquerade as ordinary lawsuits,” but their “true objective is to use litigation as a weapon to chill or silence speech.” Doe No. 1 v. Burke, 91 A3d 1031, 1033 (D.C. 2014) (intemal marks and citation omitted). The Act creates “substantive rights with regard to a defendant’s ability to fend off a SLAPP."” Competitive Emer. Inst. v. Mam, 150 A.3d 1213, 1226 (D.C. 2016), as amended (Dec. 13, 2018) (quotation omitted), The party invoking the Act first “makes 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.” D.C. Code § 16- 5502(b). Making this prima facie showing is “not onerous,” Saudi Am. Pub. Rels. Affairs Comm. v. Inst. for Gulf Affairs, 2020 D.C. App. LEXIS 463, at *3, — A.3d — (D.C. Dec. 10, 2020). Theburden then shifts to the nonmoving party to “demonstratef] that the claim is likely to succeed on the merits, in which case the motion shall be denied.” D.C. Code § 16-5502(b). In making this determination, courts “ask{] whether a jury properly instructed on the applicable legal and constitutional standards could reasonably find that the claim is supported in light of the evidence that has been produced or proffered in connection with the motion.” Man, 150 A.3d at 1232. Plaintiff's burden to show “likelihood of success” is a much “meatier” burden than the “prima facie” showing required of Defendants. Saudi Am. Pub. Rels. Affairs Comm., 2020 D.C. App. LEXIS 463, at *17. If the non-moving party cannot meet that burden, the court dismisses the SLAPP lawsuit with prejudice. Jd. § 16-5502(d). The statute permits the court to award reasonable costs and fees to the party who prevails on an Anti-SLAPP motion. See id. § 16-5504; Mann, 150 A3d at 1238 B, The Statements at Issue Here Were Made “In Furtherance of the Advocacy on Issues of Public Interest” ight of Under the Act, statements made “in furtherance of the right of advocacy on issues of public interest” are those that were made in a “public forum” or otherwise “to the public” on matters of public interest. D.C. Code § 16-5501(A) & (B). Courts in the District have repeatedly held that statements made in online news articles on topics of public interest constitute speech in a “public forum” or “to the public” under the Act. See Mann, 150 A.3d at 1227, Sieber v. Vogel, Case No. 2020 CA 001596B (D.C. Super. June 25, 2020) (Park, J.), Order at 19-20 (Order attached hereto as Exhibit A); Boley v. Ad. Monthly Grp., 950 F. Supp. 2d 249, 256 (D.D.C. 2013), Farah v. Esquire Magazine, Inc., 863 F. Supp. 2d 29, 38 (D.D.C. 2012); ef Saudi Am. Pub. Rels. Affairs Comm., 2020 D.C. App. LEXIS 463 (Act covers statements made by sources that are published in online media); Fridman, 229 A.3d at 502-03 (same). Undeniably, issues surrounding “toxic” work environments and the treatment of women in the workplace ~ particularly in a high-profile field like listener-funded public radio in a major metro area, where the allegations concemed multiplewomen and resulted in public action being taken by the station? and other news coverage* — are matters of public interest. See, e.g., TS Media, Inc. v PBS, 2018 WL 2323233 (D.C. Super. 2018) (Epstein, J.) (PBS's statements regarding allegations of workplace sexual harassment protected by DC. Anti-SLAPP Act), Wentworth v. Hemenway, 2019 Cal. App. Unpub. LEXIS 3880, at *2 (une 5, 2019) (woman’s statements to news organizations regarding professor’s improper conduct toward her were protected by anti-SLAPP statute). Cf. Saudi Am. Pub. Rels. Affairs Comm., 2020 D.C. App. LEXIS 463 at 16 (holding statements criticizing individual protected under the Act, and explaining that the term “issue of public interest should be liberally interpreted” and the “intermixing of public and private interests is not disqualifying”), Close It! Title Sves., Ine. Nader, Case No. 2018 CA 005391B (D.C. Super.) (Jackson, J.), Order at 8-9 (Order attached hereto as Exhibit B) (Act protected individuals’ statements to WAMU reporter about dispute with residential title company, noting that “public interest” given “broad reading” under the Act). As such, Plaintiffs defamation claims ~ which are based almost entirely on statements made to “the Current Publication” (Compl, $143) about a matter of public interest ~ clearly fall within the statute.* 5 See, e.g, WAMU Press Release, AU Announces WAMU Leadership Changes, Outlines Path Ahead, Aug. 7, 2020, https:!/wamu.org/around-wamu/au-announces-wamu-leadership-changes- outlines-path-ahead/ "In addition to the Current, other Metro D.C. media have reported on complaints from within the WAMU newsroom, including the HR investigation into Plaintiff's conduct. See, e.g., Andrew Beaujon, WAMU Reorganizes Newsroom Amid Staff Turmoil, Washingtonian, July 21, 2020; Joe Concha, Manager of DC-based NPR affiliate resigns amid workplace complaints, The Hill, Aug 7, 2020. See also Elahe Izadi and Paul Farhi, A public radio station was already in turmoil. Then its own news site dropped an explosive report, Washington Post, Aug, 5, 2020 (detailing issues at WAMU regarding “equity and newsroom culture, and noting that “American University launched an investigation into a senior managing editor blamed by some staffers for the departures of women of color”) 5 Plaintiff claims that the same challenged statements were made to both Current and to HR and WAMU supervisors. Compl. § 43. Therefore, for purposes of the Court's consideration under theI, PLAINTIFF CANNOT MEET HIS BURDEN TO SHOW THAT HE IS LIKELY TO SUCCEED ON THE MERITS Plaintiff is not “likely to succeed,” as the Anti-SLAPP law requires, on the merits of his defamation claim because all of the statements he challenges are non-actionable opinion, substantially true, and/or were not made or published by Defendants, He is likewise unlikely to succeed on his derivative claims for “false light” and “tortious interference” because where, as here, those claims are based on the same factual allegations as the claims for defamation, they necessarily fall along with the defamation claim, A. The Challenged Statements Are Not Actionable in Defamation To state a claim for defamation, a plaintiff must show, among other things, that the challenged statements convey a “false” fact. Blodgett v. Univ. Club, 930 A.2d 210, 222 (D.C. 2007). A statement is not “false” (1) if itis an “opinion” or (2) ifit is substantially true. A non-actionable opinion is a statement “so imprecise or subjective that it not capable of being proved true or false.” Farah v. Esquire Magazine, 736 F.3d 528, 534-35 (D.C. Cir. 2013) (intemal citations omitted). In that assessment, the court considers the statement in its full context, see Moldea v. N.Y. Times Co., 22 F.3d 310, 314-15 (D.C. Cir. 1994), including whether a reader or listener would understand that the speaker was “expressing a subjective view” or objective facts, see Guilford Transp. Indus. v. Wilner, 760 A.2d 80, $97 (D.C. 2000). Whether a statement is non-actionable opinion is a question of law for the court. See, e.g., Farah, 736 F.3d 528; Abbas v. Foreign Policy Grp., LLC, 975 F. Supp. 2d 1 (D.D.C. 2013). A statement is also non-actionable if the plaintiff cannot show “material falsity.” Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 776-77 (1986). Or, put differently, a statement is not actionable as a matter of law when it is substantially true, Armstrong v. Thompson, 80 A.34 177, Anti-SLAPP Act, the Current. jatements all concem the same matter of public interest as reported by183-84 (D.C. 2013). “Minor inaccuracies do not amount to falsity so long as ‘the substance, the gist, the sting, of the libelous charge be justified.” Air Wis. Airlines Corp. v. Hoeper, 571 US. 237, 247 (2014). And because of the First Amendment principles at stake in defamation actions, “[w]here the question of truth or falsity is a close one, a court should err on the side of nonactionability.” Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287, 1292 (D.C. Cir. 1988), see also Hepps, 475 U.S. at 776-77 (Constitution requires that, on matters of public concer, “plaintiff bear the burden of proving falsity”). Te The lark Statements” Are Non-Actionable Plaintiff alleges Ms, Clark told Current and HR that he “dismissed her ideas at meetings, made condescending and snide remarks to women, micromanaged her and hovered over her desk, used [her] PMP Year-End review to bully her, and engaged in behavior detrimental to her” (the “Clark Statements”), Compl, $43. Even assuming that Ms, Clark made these statements, they are precisely the type of subjective comments, based on personal perceptions and feelings, that cannot be proven true or false and are therefore nonactionable.” Behavior that is “condescending,” ¢,” or “bullying” to one person may not read at all that way to someone else, See, e.g. Ollman v. vans, 750 F.2d 970, 980 (D.C. Cir. 1984) (statements that are “loosely definable” or “variously interpretable” cannot in most contexts support an action for defamation), Rosen v. AIPAC, Inc., 41 A3d 1250, 1258 (D.C. 2012) (statement that plaintiff's “behavior did not comport with the standard” expected of employees was non-actionable opinion because it was open to ‘multiple interpretations”) (citing McClure v. Am. Fam, Mut. Ins, Co., 223 F.3d 845, 856 (8th Cir. ® The statements that Plaimtiff challenges (Compl, { 43) from the Notice of Complaint (referenced at Compl. $38) are of the same nature as the statements reported about him in the Article, which were that: women “shared experiences of feeling undermined, micromanaged, [and] mistreated”, Plaintiff “mistrusted and micromanaged women of color and did not see opportunities for their growth in the workplace,” Plaintiff “had created the ‘most toxic work environment’ they had experienced,” and he was “condescending.” Everhart Decl., Ex. 12000) (statements that employees were “disloyal,” “ stuptive,” and “in direct violation of their agreements were non-actionable opinion)). Indeed, numerous defamation decisions around the country have held that the same and similar language is clearly too subjective to be actionable. See, e.g., Hays v. Gagliardi, 2017 Cal. App. Unpub. LEXIS 7985, at *15 (Nov. 21, 2017) (“statements that [plaintif] was ‘condescending and rude’ are clearly an impression or opinion that does not convey any statement of fact”); Mills v. Jowar, 924 F. Supp. 2d 1016, 1033 (S.D. Towa 2013) (statement that plaintiff was “micromanager” was opinion); Hupp v. Sasser, 490 S.E.2d 880, 887 (W. Va. 1997) (“bully” is “totally subjective” and therefore not actionable; “the threshold of what constitutes bullyism to one would necessarily not be the same for another (labeling behavior as “unprofessional” or “unacceptable” also nonactionable).” Moreover, apart from the fact that the challenged language itself (“condescending,” “bullying,” etc.) is “loose” and “variously interpretable,” the context - the workplace also makes clear that Ms. Clark was expressing her subjective view of Plaintif?’s behavior. Anyone reviewing the Clark Statements necessarily understands that they come not from a wholly objective source, but rather from a person describing her unhappy workplace circumstances, Compl. 43. The context here further underlines the nonactionability of these statements. See, e.g., Anderson ¥. Sch. Bd., 2020 US. Dist. LEXIS 94045, at *96 (E.D. Va. May 29, 2020) (“statement regarding [plaintiff's] unprofessional behavior “depends largely on a speaker's viewpoint’ concerning professionalism in the workplace, and courts uniformly hold these sorts of statements to be ‘an expression of opinion”) (citing cases), Ulrich v. Moody's Corp., 2014 U.S, Dist. LEXIS 145898, 7 See also, e.g., Kerr v. Marshall Univ. Bd. of Governors, 824 F 34 62, 75 (4th Cir. 2016) (calling plaintiff “unqualified” and an “unsatisfactory” performer were nonactionable opinions; expression of defendant’s “judgment that [plaintiff] is ‘dishonest and unethical’” likewise nonactionable), Turner v, Wells, 198 F. Supp. 34 1355, 1372 (S.D. Fla, 2016) (noting that “[nJumerous courts have held in various circumstances that a defendant’s characterization of a plaintiff's actions as “unprofessional” is nonactionable pure opinion” and finding that statement that plaintiff exhibited “pattern of abusive, unprofessional behavior’ also nonactionable)at *36-38 (SD.N.Y. Mar. 31, 2014) (statements critical of plaintifi’s conduct at work in a “performance improvement plan” held to be non-actionable opinion, citing numerous other cases, in which similar employment-related criticisms ~ e.g., that a plaintiff’ was “unprofessional” or “incompetent” — were also held non-actionable); Lewis v. McTavish, 673 F. Supp. 608, 611 (D.D.C. 1987) (allegations that plaintiff had an “inability to communicate,” an “unwillingness to compromise,” and lacked “knowledge and skill” were “imprecise,” “unverifiable,” and presented in a forum ~ a complaint about professional performance ~ “where opinions are expected”); of. Guilford, 760 A.2d at 591 (statements made “in the context of a labor dispute” are usually understood to be subjective opinions) Even were the Court to disagree with the precedent cited, and hold that a reader/listener would understand these characterizations to convey objectively provable facts, they would still be non-actionable because they are substantially true. Before the Court with this motion are swom statements from eight employees and former employees at WAMU, six of them women, regarding Plaintifi’s “dismissive” attitude, his “condescension, his “hovering,” his “bullying,” and his other bad behavior. For example: © Micromanaging: Plaintiff “micromanaged” Ms. Clark by, among other things, constantly demanding to know her whereabouts, by asking about “minute details” of stories, and by changing her work product without telling her. Clark Decl. #{]7-8. See also Declaration of Chris Chester 5 (Plaintiff would ask Ms. Clark “if she had done very basic things like making a call to a press person or speaking to a reporter who had filed a story”), Simons Deel. { 8 (Plaintiff would “remind [Ms. Clark] to do basic tasks that a journalist of her experience certainly did not need to be reminded of"); id. 4.9 (it looked like [Plaintiff] was trying to control Ms. Clark’s every move”). He micromanaged Alana Wise by trying to control and dictate her time, inserting himself into her projects for others, and “mak[ing] digs about small, unimportant things.” Wise Decl. $f 5, 7. WAMU editor Mary Tyler March echoed similar concerns, describing Plaintiffas being prone to steamroll ahead with his own ideas regardless of the concems of others.” March Decl. 7; id. §*| 7-9 (describing examples of overbearing and micromanaging behavior). ‘© Hovering: Plaintiff would “hover over [Ms. Clark] for long periods of time in ways that [she] found menacing,” and she felt that she “could not escape him.” Clark Decl9; see also March Decl. § 12 (Plaintiff “was constantly looming over [Ms. Clark’s] desk and speaking to her in a condescending or terse way”), Chester Decl. 6 (“I sometimes witnessed him hovering over Ms, Clark’s desk and invading her personal space.”); Simons Decl. ]7 (Plaintiff “would loom over the seats/desks of his subordinates”), Wise Decl. {| 18 (Plaintiff would “hover” over the desk of Ms. Clark). Condescending, dismissive and bullying: Plaintiff “routinely ignored, dismissed, and belittled [Ms. Clark’s] suggestions and input” during meetings “in a tone of voice that [she] found to be incredibly condescending.” In other contexts, too, he was “rude and disrespectful.” He “yelled at her in front of the whole newsroom” because she was having a technical problem with her speakers. He “retaliated” against her in her performance review for complaining about him to the News Director. In general, Plaintiff's “mistreatment, and undermining of [her] in front of others, was pervasive and persistent.” Clark Decl. J] 10, 12, 15; see also March Decl. 11 (Plaintiff “appeared to me to target women of color,” including Ms. Clark, “with his condescending behavior and impatience”); Chester Decl. 45-6 (Plaintiff used “condescending” tone with Ms. Clark, especially during meetings when he would “demean” and “undermine” her), Simons Dec. { 10 (Plaintiff “would speak to [Ms. Clark] as if'a child, dismiss ideas she offered, and interrupt her”).” Plaintiff likewise “repeatedly said demeaning things” to Ms, Wise. Wise Decl. 6; id 418 (tone was “condescending and dismissive); id $16 (“disrespectful” and “condescending” behavior was “pervasive”) Ms. March describes similar conduct by Plaintiff toward her, stating in her declaration that had “belittled and condescended” to her and publicly made comments about her that were “demeaning and out of line.” March Decl. {| 5; see also Simons Deel. § 12 (Plaintiff “demeaned” Ms. March on Slack). WAMU Senior Editor Gabe Bullard and reporter/producer Victoria Chamberlin have also called Plaintiff's tone “condescending” Decl. of Gabriel Bullard §¥ 8-9; Decl. of Victoria Chamberlin § 4. See also Bullard Decl. 4 6 (Plaintiff's “management style” ‘was “top-down,” he “had a set idea of how things should be done, and everyone needed to get in line behind it,” “he often did not brook dissent” and “if someone did not do exactly what he wanted them to do, he sometimes called them ‘difficult’ or used a similar term”), id. 48 (Plaintiff “had a reputation for having a condescending, “father- knows-best’ type of attitude”); id. 4110 (Plaintiff would sometimes call his direct reports “lazy”), Plaintiffs instruction to editor Carmel Delshad to take notes in a meeting was ‘demeaning and humiliating,” Delshad Decl. 4. See aso Simons Decl. 12 (Plaintiff “asked [Ms. Delshad] to take notes in a meeting, even though she is also an editor who reports directly to the News Director, it was not her job to take notes, and she was unprepared to do so, The request was embarrassing to her.”) Detrimental behavior: Plaintiff further engaged in conduct that was “detrimental” to some of the women he supervised because he was a poor communicator and wasgenerally unsupportive of their growth as journalists. Clark Decl. § 11 (describing how Plaintiff would “send reporters and interns to me, often prior to my arrival, to work with on assignments or to edit their work without informing or providing me with any background on their assignments”); March Decl. 13 (Plaintiff stifled Ms. Clark's ability to work on long-term projects), id. { 18 (Plaintiff“often did not work with” his, direct report “to accomplish” and carry out her ideas); Chamberlin Decl, § 3 (Plaintiff “was not a good communicator” and did not “help cultivate my work to achieve” performance goals), Simons Decl. $9 16, 17, 24 (Plaintiff's “poor management style stifled the growth of many young journalists” and caused reporters to request not to be assigned to him), Wise Decl. € 16 (plaintiff made Ms, Wise feel “unwelcome” and “offered no guidance, advice, mentorship or help”). In addition, management at WAMU obviously gave weight to the complaints detailed above when it stripped Plaintiff of his direct reports, instigated an HR investigation, and placed him on administrative leave (on which he remains). Compl. 138. And Plaintiff himself acknowledged these problems in his email of apology following the July 1, 2020, meeting, in which he asked for these women’s forgiveness: “I failed you and I failed the women of color in our newsroom.” See Simons Decl., Ex. 2 In light of the foregoing, Plaintiff cannot possibly meet his burden of showing that the challenged statements conveyed “materially false” facts, The statements are subjective opinions that are not actionable, or, if the Court deems them statements of fact, they are substantially true, 2. The “Wise Statements” Are Non-Actionable Plaintiff next claims that Ms, Wise defamed him when she allegedly told Current, HR. and her News Director that Plaintiff “yelled at her and raised his voice at her.” Compl. 43. This claim is not actionable for several reasons. First, as against Current, it is not actionable because Current did not publish any such statement, There is nothing in the Article that references Plaintiff “yelling” or “raising his voice” at Ms, Wise or anyone else. See Everhart Decl., Ex. 1 Second, regardless, saying that someone “yelled at” or “raised their voice with” another person is also a non-actionable statement of opinion. What constitutes “yelling at” a person is a highly subjective question. See, e.g., Dragulescu v. Va. Union Univ., 223 F, Supp. 34 499, 510 (ED. Va. 2016) (statements that plaintiff “spoke ‘disparagingly,” had a ‘meltdown’ or ‘temper 14tantrum,’ or did not ‘properly contribute to [her employer's] mission’ are ‘statements that are relative in nature’... fand are therefore] “expressions of opinion and not actionable”); Mallory v. 5 & S Publrs., 168 F. Supp. 34 760, 771 (E.D. Pa. 2016) (citing cases noting, among other things, that accusing plaintiff of throwing a “hissy fit” is not actionable); Carozza v. Blue Cross & Blue Shield of Mass., 14 Mass. L. Rep. 88 (Mass, Super. 2001) (characterization of plaintiff as “angry” non-actionable opinion); see generally Sack on Defamation: Libel, Slander and Related Problems § 2:4.1 (statement “that someone was upset, angry, or impatient when he or she was not” is not actionable in defamation).* Third, like the Clark Statements, the statements that Plaintiff “yelled” and “raised his voice” at Ms. Wise are substantially true, See, e.g., Wise Decl. §]15 (describing circumstance where Plaintiff “yelled at” Ms. Wise in the newsroom in front of others). See also Clark Decl. | 12 (describing occasion where Plaintiff “yelled at me in front of the whole newsroom”). 3. The “Simons Statements” Are Non-Actionable Plaintiff claims that Ms, Simons made statements “accus[ing]” him “of being the sole reason for the departure of four women of color from WAMU and why the culture was toxic.” Compl. $43, But Ms, Simons wrote no such thing, While her memo strongly criticizes Plaintiff's behavior and suggests that it was a contributing factor to “woman after woman exitfing] our newsroom door,” nowhere does it say that Plaintiff was the “sole reason for the departure of four iff was women of color.” Simons Decl., Ex. 1. Likewise, the memo does not claim that Plai the “sole reason” that “the culture was toxic.” On the contrary, the memo points to various individuals ~ including, but certainly not limited to, Plaintiff — who she says contributed to “this toxic place.” Jd. As for the Article, it also does not make any such statement, Rather, it states * The author of this leading treatise, the Honorable Robert D. Sack, serves on the United States Court of Appeals for the Second Circuitthat “three female journalists of color who have left the newsroom since January 2019 [said] their decisions were prompted by [Plaintiff's] behavior toward them.” Everhart Decl., Ex. | (emphasis added). A defendant obviously cannot be liable for a statement it did not publish. See, eg, Zimmerman vy. Al Jazeera Am., LLC, 246 F. Supp. 3d 257, 286-87 (D.D.C. 2017). Moreover, the statement is substantially true, As Current reported, “three female journalists of color” had “left the newsroom since January 2019” and, undisputedly, their decisions were prompted by Plaintiff's behavior. See Clark Decl. § 17 (Plaintiff “was a major factor in my departure” . .. “because [she] no longer could tolerate the work environment at WAMU that Mr. Berry and others had created”), Wise Decl. § 17 (“I quit ... solely because of Zuri Berry”); Simons Decl. 4 24 (Plaintiff “was a factor in my decision to leave the newsroom”). 4. Other “Current Statements” Are Non-Actionable Apart from the statements mentioned above, Plaintiff does not specifically identify in the “Counts” section of his Complaint what statements in the Article he alleges to be false and defamatory, Atan earlier point in his Complaint, he alleges that the Article “was filled with false statements.” Compl. 4134. But, turning to specifics, he alleges only: “First, there was not a slew of complaints filed against Mr. Berry, Only two employees complained, Letese” Clark and Alana Wise.” He does not allege any “second” supposedly false statement. The alleged statement that “a slew of complaints [were] filed against” Plaintiff is not actionable. First, the Article does not even say that. Rather, it reports that Plaintiff was “the subject of multiple complaints.” Everhart Decl., Ex. 1, Second, in any event, it is substantially true that “multiple women” complained about him, including Ms. Clark (Clark Decl. $9] 14, 17), Ms, Wise (Wise Decl. §§ 17, 19), Ms. Simons (Simons Decl. {fj 18, 21), Ms. March (March Decl. 16) and Ms, Delshad (Delshad Dec. §|5). Indeed, Plaintiff acknowledges that the complaints abouthim were sufficiently numerous and serious that WAMU placed him on administrative leave Compl. $38. Otherwise ~ apart from the alleged statement about “slew of complaints” against him, the “Clark Statements,” the “Wise Statements,” and the “Simons Statements — Plaintiff points to no other statements in the Article, and as a result, he cannot state a claim against any other portion of the Article. See, e.g., Crowley v. N. Am. Telcomms. Ass'n, 691 A.2d 1169, 1172-73 (D.C, 1997) (D.C. law requires, in a defamation case as with all others, that “the factual allegations [be] sufficient to permit the opposing party to form responsive pleadings”) Because all the statements Plaintiff challenges are nonactionable, the Complaint should be dismissed under the Anti-SLAPP statute in its entirety B, _ Plaintiff Has Made No Actionable Allegations Against Defendants Drizin and Everhart As against Ms, Drizin and Ms, Everhart, the Anti-SLAPP special motion should be granted for an additional reason. While Plaintiff alleges that Ms. Fernandez wrote the Article and Currem! American University published it, he makes no allegations that either Ms, Drizin or Ms Everhart had anything to do with it. In fact, they did not. See Drizin Decl. $f] 6-7 (not involved in editing the Article and “did not read it before publication”); Everhart Decl. 4] 5 (“not involved in overseeing the reporting, drafting or editing of” Article). Because Ms. Drizin and Ms. Everhart did not contribute to the publication of the Article, and because publication is an essential element of any defamation claim, the claims as against them necessarily fail. See, e.g., Zimmerman, 246 F. Supp. 3d at 286-87 (because plai “must show ‘that the defendant published the allegedly defamatory statement,” there can be no liability where defendant was “not involved in the writing of the article or the final editorial processes”) (citing Zavoulareas v. Piro, 759 F.2d 90, 136 (D.C. Cir, 1985), And Ms. Drizin and Ms, Everhart cannot be held responsible for a publication they had nearly nothing to do with just because they are the Executive Director and Managing Editor,respectively, of Current, Supervisors or corporate officers are not liable for the alleged tortious actions of subordinates ~ vicarious liability runs to the corporate employer, not to employees or executives, See Meyer v, Holley, $37 U.S, 280, 285-86 (2003), Plaintiff's Parasitic Claims for “False Light” and Tortious Interference with Current and Prospective Business or Contractual Relationships” Also Fail “A plaintiff may not avoid the strictures and burdens of proof associated with defamation by resorting to a claim of false light. .. In fact, where the pl false light claims on the same allegations, .. . the claims will be analyzed in the same manner.” Blodgett, 930 A.2d at 22 -23 (rejecting both claims); accord, ¢.g., Bauman v. Butowsky, 377 F. Supp. 3d 1, 16 (D.D.C. 2019) (same). Likewise, where a “plaintiff's defamation claim fails,” his claim for tortious interference based on the same facts “must fail as well.” Arpaio v. Cottle, 404 F. Supp. 3d 80, 86 (D.D.C. 2019); see also Marshall v. Allison, 554 F. App’x 20, 22 (D.C. Cir 2014) (non-actionable “defamatory statements” may not “serve as the foundation for [a] tortious interference claim”). Therefore, because (as explained above) Plaintiff’s defamation claim lacks any merit, and that claim must be stricken under the Anti-SLAPP Act, the Court should also dismiss these “other tort claims based upon the same allegedly defamatory speech.” Farah, 736 F.3d at 540, I, IN THE ALTERNATIVE, PLAINTIFF'S COMPLAINT SHOULD BE DISMISSED FOR FAILURE TO STATE A CLAIM In the event that the Court determines that any of the statements at issue are not subject to the Anti LAPP Act (which they are), it should, in the alternative, dismiss Plaintif’s Complaint under D.C. Superior Court Rule 12(b)(6) for the same reasons: the statements are nonactionable opinions, they are substantially true, and, some were not even published by Defendants. In addition, as to the statements allegedly made to Human Resources, they are also subject to Rule 12(b)(6) dismissal under the common interest privilege. Under this privilege, acommunication is not actionable if it was “made in good faith upon a subject matter ‘in which the party communicating has an interest” and the receiving party has “a corresponding interest.” Smith ¥. D.C., 399 A.2d 213, 220-21 (D.C. 1979) (employee’s statements to employer regarding plaintiff's conduct privileged). Whether a communication falls within the privilege a question of law.” Blodgett, 930 A.2d at 224, If the statements initially fall under the ambit of privilege, “the burden is on the plaintiff to prove the privilege has been abused.” Howard Univ. v. Wilkins, 22 A.3d 774, 785-86 (D.C. 2011). Plaintiff only meets this burden by making a “substantial proffer” that defendants engaged in “excessive publication” or otherwise that their behavior was so “abusive as to forbid any other reasonable conclusion than that the defendant{s] [were] actuated by express malice. ...” Blodgett, 930 A.2d at 224. Clearly, Plaintiff could not make such a showing here. Ms. Simons’ memo was sent to WAMU’s News Director, Jeffrey Katz — she did not “publicize” it, Mr. Katz is the one who decided to read it at a staff meeting, Compl. §¥ 25-26. The emails from Ms. Clark and Ms. Wise were addressed to their former supervisors and to HR officials and were not widely publicized Clark Decl., Ex. 1; Wise Decl., Ex. 2. Plaintiff's Complaint contains no indication that these communications were in any way abusive, other than by the suggestion that the women making them were disgruntled. But a significant number of complaints made to HR departments and management come from unhappy employees, That, by itself, is not enough to overcome the privilege. See, e.g, Elliott v. Healthcare Corp., 629 A.2d 6, 9 (D.C. 1993); Mastro v. PEPCO, 447 F.3d 843, 849 (D.C. Cir. 2006); Ruf v. Am. Broad. Cos., Inc., 2000 U.S. Dist. LEXIS 22791, at *19 (D.D.C. Feb. 22, 2000). 19CONCLUSION D.C’’s Anti-SLAPP Act was intended to provide speakers and publishers like Ms. Clark, Ms. Wise, Ms. Simons and Current with the ability to take swift and decisive action to stem non- meritorious, speech-chilling litigation. For the foregoing reasons, the Defendants respectfully request that this Court schedule a hearing as promptly as possible pursuant to the Act, dismiss this case with prejudice, and award Defendants reasonable attorneys’ costs and fees for their response to this action Dated: December 28, 2020 Respectfully submitted, BALLARD SPAHR LLP Charles D. Tobin Charles D. Tobin (D.C. Bar No. 455593) Alia L. Smith (D.C. Bar No, 992629) 1909 K Street, NW, 12th Floor Washington, DC 20006 Telephone: (202) 661-2200 Fax: (202) 661-2299 [email protected] [email protected] Counsel for DefendantsEXHIBIT A (Qo Memo of Law) SUPERIOR COURT OF THE DISTRICT OF COLUMBIA IVIL DIVISION DISTRICT OF COLUMBIA, Plaintiff, Case No.: 2019 CA 005047 B v. Judge Jason Park PRECISION CONTRACTING Status Hearing: 6/25/2020 SOLUTIONS, LP ev al, Defendants, STEPHEN SIEBER ¢/ al, Case No.: 2020 CA 001596 B Plai ffs, Judge Jason Park v. Status Hearing: 6/25) KENNETH VOGEL et al., Defendants. ORDER These consolidated matters come before the Court on an array of motions. In case 2019 CA 005047 B, the District of Columbia has filed a motion to dismiss the counterclaims and the defendants in that matter have filed a motion for leave to file amended counterclaims. In case 2020 CA 001596 B, defendants Angie’s List, Inc, Home Advisor, Inc., American University, and Natalie Delgadillo filed special motions to dismiss under the District of Columbia's Anti-SLAPP Act, In addition, Angie’s List, Inc. and Home Advisor, Inc, also filed a motion to dismiss pursuant to Rule 12(b)(6)For the reasons discussed below, the Court grants the District of Columbia's motion to dismiss the counterclaims and denies the motion for leave to file amended counterclaims in matter 2019 CA 005047 B. In matter 2020 CA 001596 B, the Court grants the special motion to dismiss filed by American University and Ms, Delgadillo, denies the special motion to dismiss filed by Angie’s List, Inc. and Home Advisor, Inc., and grants their Rule 12(b)(6) motion to dismiss BACKGROUND On July 31, 2019, the District of Columbia (“the District”) filed a complaint against Precision Contracting Solutions, LP (“Precision”), its sole proprietor, Derrick Sieber, and its agent Stephen Sieber (collectively, “the Precision parties”). See generally Compl., District of Columbia ¥. Precision Comr, Sols., LP et al., 2019 CA 005047 B (hereinafter “the OAG Complaint” or “OAG Compl.”). Precision is a licensed home improvement contractor operating in the District. Id. 4,4. In the OAG complaint, the District alleges that the Precision parties violated the D.C Consumer Protection Procedures Act (“CPPA"), D.C. Code §§ 28-3901 ef seq, by making material misrepresentations to consumers, and violated the D.C. Construction Codes, D.C. Code §§ 6-1401 et seg,, in their renovations to residential properties. See generally id. The District seeks a permanent injunction prohibiting the defendants from engaging in future CPPA violations, compensatory damages, and civil penalties in an amount up to $5,000 per violation of the CPPA. See id. 99 52-55. On September 10, 2019, the Precision parties and Carolyn Torsell (a Precision customer), filed a separate complaint in the Superior Court against the District, ANGI Homeservices, Inc., Angie’s List, Inc," and attomey Kenneth Vogel. On September 16, 2019, this action was removed ‘ANGI Homeservices Inc. and Angie’s List, Inc. (collectively, “ANGI” operate the home services referral websites Home Advisor and Angie’s List, respectively 7to federal district court. See generally Compl., Precision Contr. Sols., LP v. ANGI Homeservices, Inc., 415 F. Supp. 3d 113 (D.D.C. 2019) (19-cv-2478) (hereinafter “the D.D.C. complaint” or “D.D.C. Compl”). The D.D.C. complaint alleged that on August 6, 2019, ANGI wrongfully removed Precision’s profile and reviews from its websites, in violation of the federal Consumer Review Faimess Act (“CRFA”). /d. § 49-97. The D.D.C. complaint also alleged that the actions of ANGI constituted tortious interference and cast Precision in a false light. Jd. {{] 98-117. Lastly, the D.D.C. complaint contained a cause of action for conspiracy against ANGI, the District, and Mr. Vogel. /d. {{] 118-35. The conspiracy claim was premised on a variety of allegations, including the allegation that Mr. Vogel transmitted false allegations about Precision to the Office of the Attorney General (“OAG”), id. $f 121-25, that an OAG investigator unlawfully entered the residence of Stephen Sieber, id. §] 125, and that the OAG communicated with ANGI about Precision shortly before Precision was removed from those websites, id. [126-31 In response to the OAG complaint, the Precision parties filed an answer and counterclaims on November 15, 2019. See generally Ans. & Counter-cl. (2019 CA 005047). In their counterclaims, the Precision parties assert that an OAG investigator unlawfully entered the residence of Stephen Sieber. See id. C5. They assert further that the OAG investigation of Precision was “stimulated” by Mr. Vogel, who represented a client involved in a dispute with Precision. /d. §| C15. The Precision parties further allege that the OAG contacted Precision clients and encouraged them to make allegations against the company. /d. C24. They assert that while the OAG’s investigations of Precision were underway, the OAG and Mr. Vogel were in repeated contact with ANGI and the Better Business Bureau and advised those entities that Precision was in danger, that its reviews were false, and that a lawsuit and press release were forthcoming. See id. | 26. The counterclaims assert the following causes of action against the District: (1) libelper se; (2) tortious interference; (3) vicarious liability by reason of invasion of privacy; and (4) vicarious liability by reason of conspiracy. See id. On November 19, 2019, Chief Judge Beryl Howell of the U.S, District Court for the District of Columbia dismissed the D.D.C, complaint brought by the Precision parties and Ms. Torsell. See generally Precision Contr. Sols., LP v. ANGI Homeservie s, Inc., 415 F. Supp. 3d 113 (D.D.C 2019), The district court dismissed the Precision parties’ CRFA claim with prejudice, finding that there is no private right of action under the CRFA and that even if there were such a private right of action, the Precision parties’ claim failed as a matter of law to state such a claim. See id. at 121 The strict court dismissed the remaining claims—for tortious interference, false light, and conspiracy—pursuant to Rule 12(b)(6) for failure to state a claim, without specifying whether the dismissal was with or without prejudice.” See id. at 122-27 The District filed a motion to dismiss the counterclaims on December 6, 2019. The Precision parties filed an opposition on December 19, 2019. The District filed a reply on January 6, 2020, which the Precision parties moved to quash on January 13, 2020. The Court denied the motion to quash, but granted the Precision parties leave to file a sur-reply, which they did on April 7, 2020. On March 3, 2020, the Precision parties filed a motion for leave to file amended On December 4, 2019, the Precision parties filed a third-party complaint in the OAG matter against ANGI and Mr. Vogel. The third-party complaint asserted the following causes of action: (1) defamation (against Mr. Vogel); (2) tortious interference (against Mr. Vogel), and (3) conspiracy (against all third-party defendants). See Third-Party Compl. (2019 CA 005047 B) {¥ 73-101. The third-party complaint, like the counterclaims and the D.D.C. complaint, alleged that Mr. Vogel vindictively triggered the OAG investigation into Precision and conspired with the OAG, Angie’s List, and Home Advisor to injure Precision by removing Precision from the Home Advisor and Angie's List websites and issuing a complaint and press release containing damaging claims about Precision. See, e.g., id. ¥ 25, 57, 60, 87. On March 3, 2020, the Precision parties voluntarily dismissed the third-party complaint, three days before commencing a separate action against ANGI and Mr. Vogel as discussed below 4counterclaims against the District? The District filed an opposition on March 17, 2020, and the Precision parties filed a reply on April 7, 2020. On March 6, 2020, the Precision parties filed a separate action against ANGI, Mr. Vogel, the District, Attomey General (“AG”) Karl Racine, and Assistant Attomey General (“AAG”) Richard Rodriguez (lead counsel in the OAG matter). See generally Compl. Stephen Sieber et al ¥. Kenneth Vogel et al., 2020 CA 1596 B (hereinafter “the Precision complaint” or “Precision Compl”). Also named as defendants were DCist staff reporter Natalie Delgadillo and American University (collectively, “the AU defendants”). See generally id. Like the counterclaims in the OAG matter and the D.D.C. complaint, the Precision complaint alleges a broad conspiracy between OAG, ANGI, and Mr. Vogel to harm Precision. See generally id. The Precision complaint contains familiar allegations concerning an OAG investigator's unlawful entry into Stephen Sieber’ s residence, id. §¥] 20-26, Mr. Vogel's triggering of the OAG investigation through false allegations about Precision, id. $¥] 41-50, 136-64; OAG’s efforts to contact Precision customers to elicit complaints about the company, id. {fj 60-61; the removal of Precision’s profile and reviews from the Home Advisor and Angie’s List websites, id. 44 89-92, 134.35; and the issuance of the OAG complaint and accompanying press release containing harmful and false allegations about Precision, id. ¥ 100-10. The Pre jon complaint further alleges that AG Racine and AAG Rodriguez personally directed this conspiracy to divert attention from the public exposure of the action of the OAG investigator who had unlawfully entered Stephen Sieber's residence to serve legal papers. Jd. {9 76-81, 166-80, 234-35. According to the complaint, staff reporter Delgadillo furthered this 5 The proposed amended counterclaims mirror the allegations in the complaint filed by the Precision Parties in the 2020 CA 1596 B, discussed below. 5conspiracy by allowing AAG Rodriguez to ghost-write an article about the OAG complaint under her name, which was published on the website of the DCist, a publication owned by American University. Jd. 9 113-17, 181-95. The Precision complaint alleges that Ms. Delgadillo “did no research concerning OAG’s Complaint and Press Release before DCist published its article online” and “made no attempt to contact either D. Sieber or S. Sieber, who were mentioned extensively in the article, other than a voice mail message minutes before publication of the article.” /d. 44] 118- 19, The Precision complaint asserts the following causes of action: (1) libel per se (against AG Racine, AAG Rodriguez, and the AU defendants); (2) slander (against Mr. Vogel); (3) tortious interference (against all defendants); (4) abuse of process (against AG Racine, AAG Rodriguez, and Mr. Vogel), (5) intentional infliction of emotional distress (against all defendants); (6) vicarious li bility by reason of respondeat superior (against American University); and (7) vicarious liability by reason of unlawful conspiracy (against all defendants).* See generally id. In response to the Precision complaint, ANGI filed a Rule 12(b)(6) motion to dismiss and a special motion to dismiss under the District of Columbia Anti-SLAPP Act of 2010, D.C. Code §§ 16-5501 ef seq. (“Anti-SLAPP Act”). The AU defendants have also filed a special motion to dismiss under the Anti-SLAPP Act, in which they argue, inter alia, that the plaintiffs had failed to state a viable claim and therefore had no likelihood of success on their claims. Each of these motions is fully briefed.> 4 On June 16, 2020, the Court issued an order consolidating 2019 CA 5047 B and 2020 CA 1596 B 5 On May 26, 2020, Mr. Vogel filed a Rule 12(b)(6) motion to dismiss, a special motion to dismiss under the Anti-SLAPP Act, and a motion for attorney's fees. None of the Precision parties has filed a response to Mr. Vogel’s motions. Because Stephen Sieber is not represented by counsel, his deadline to respond to Mr. Vogel’s motion was stayed by the emergency orders issued by Chief Judge Robert Morin issued March 18, 2020 and extended multiple times since, staying filing 6ANALYSIS L [HE DISTRICT’S MOTION TO DISMISS THE COUNTERCLAIMS IN 2019 CA 5047 B A. The Doctrine of Res Judicata Bars the Counterclaims The District has moved to dismiss the counterclaims in 2019 CA 005047 on the grounds that they are barred by the doctrine of res judicata, It contends that Chief Judge Howell’s order dismissing all the claims in that matter operated as an adjudication on the merits of claims arising from the same common nucleus of facts as those underlying the counterclaims. The Precision parties respond that the district court’s ruling was not an adjudication on the merits because the district court—by dismissing the federal question claim expressly with prejudice and not specifying whether the dismissal of the non-federal claims was with or without prejudice—eft open the option of re-filing the non-federal claims in this Court. “Under the doct ¢ of claim preclusion, [i.e., res judicata] a judgment on the merits in a prior suit involving the same parties or their privies bars a second suit based on the same cause of action.” Smith v. Greenway Apts. LP, 150 A.3d 1265, 1272 (D.C. 2016) (citing Smith v. Jenkins, 562 A.2d 610, 613 (D.C. 1989)). “The doctrine operates to bar in the second action not only claims which were actually raised in the first, but also those arising out of the same transaction which could have been raised.” Patton v. Klein, 746 A.2d 866, 870 (D.C. 1999). “A ‘ im’ or ‘cause of action,’ for purposes of claim preclusion, comprises all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.” Smith, 150 A.3d at 1273 (citing Jenkins, 562 A.2d at 613). “The deadlines for self-represented parties in light of the current public health emergency. Accordingly, the Court will not grant Mr. Vogel’s motions as conceded but will set a deadline for Mr. Sieber to respond to these motions.“transaction” or ‘occurrence’ is the subject matter of a claim, rather than the legal rights arising therefrom.” /d., see Patton, 746 A.2d at 870 (“If there is a common nucleus of facts, then the actions arise out of the same cause of action.”). The record is clear that the federal lawsuit involved the same parties as those involved in the counterclaims, including Precision, the Siebers, and the District. See Precision Contr. Sols., 415 F, Supp. 34 at 116. Itis equally clear that the counterclaims share the same subject matter and a common nucleus of fact with the dismissed federal lawsuit. The counterclaims include allegations concerning: the alleged unlawful entry of the OAG investigator into home where Stephen Sieber resides, Counter-cl. §f] C5-C10; Mr. Vogel’s triggering of the OAG investigation through allegedly false allegations, id. 4] C15-C21; the conspiracy between OAG, ANGI, and Mr. Vogel that resulted in the removal of Precision and its reviews from the Home Advisor and Angie’s List websites, id. 44] C26-C33, C51; and the harmful and false allegations included in the OAG complaint and accompanying press release, id. §¥ C35-C50. These allegations mirror those contained in the D.D.C. complaint. See, ¢.g., D.D.C. Compl. j 125 (alleged unlawful entry of the AG investigator into home where Stephen Sieber resides); id $f 121-25 (allegations that Mr Vogel transmitted false allegations about Precision to OAG); id. $f] 126-35 (allegations of conspiracy between OAG, ANGI, and Mr. Vogel to harm Precision that resulted in Precision’s removal from the Home Advisor and Angie’s List websites); id. 130 (allegation that OAG filed complaint and issued a press release containing harmful allegations concerning Precision). The allegations in the counterclaims and the D.D.C. complaint arise from a common nucleus of fact ‘The Precision parties note that they did not, in the D.D.C. complaint, assert a libel per se cause of action, as they do in their counterclaims against the District, The libel per se action, however, is premised on statements made by the District in the OAG complaint and theaccompanying press release issued by the OAG. See Counter-cl. §¥ C36-C42, C48-C49, C55-C66. The Precision parties raised similar allegations in the D.D.C. complaint, alleging that the District, as part of its conspiracy with ANGI and Mr. Vogel, “filed suit against [Precision] on August 2, 2019, and publicized its action through a press release that attached the complaint OAG had filed, which contained false and defamatory statements about PCS[,] Derrick Sieber and Stephen Sieber.” D.D.C. Compl. 130, The D.D.C. complaint also contained a cause of action for “false light” against the District, ANGI and Mr. Vogel, based on the removal of Precision from the aforementioned websites, which was allegedly precipitated by the OAG complaint and press release. /d. ¥ 108-17. Thus, the record indicates that the libel per se counterclaim, like the other counterclaims, arises from the same nucleus of facts underlying the D.D.C. complaint, and could have been brought in that action. See Patton, 746 A.2d at 870, As for whether the district court’s order dismissing the non-federal claims under Rule 12(b)(6) operated as an adjudication on the merits, the law is clear. A dismissal pursuant to Rule 12(b)(6) “is a resolution on the merits and is ordinarily prejudicial.” Okusumi v. Psychiatric Inst. of Wash., Inc., 959 F.2d 1062, 1066 (D.C. Cir. 1992). Although Judge Howell’s order did not specify whether the non-federal claims were dismissed without or without prejudice, “a 12(b)(6) dismissal is with prejudice unless the court states otherwise.” Sirumsky v. Wash. Post. Co., 922 F. Supp. 2d 96, 106 (D.D.C. 2013). ‘The Precision parties ask this Court to infer that the district court intended to dismiss the non-federal claims without prejudice from the fact that it dismissed the federal claim explicitly “with prejudice” but did not so specify in dismissing the non-federal claims. Drawing such an inference from the absence of express language would, however, contravene unambiguous authority. See Fed. R. Civ. P. 41(b) (“/Ujnless the dismissal order states otherwise, a dismissalunder this subdivision (b) and any dismissal not under this rule—except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19—operates as an adjudication on the merits.”) (emphasis supplied); see also Rollins v. Wackenhut Servs., 703 F 3d 122, 132 (D.C. Cir. 2012) (Kavanaugh, J., concurring) (“A district court order that dismisses a case under Rule 12(b)(6) without stating whether it is with or without prejudice operates as a dismissal with prejudice. In this case, the District Court’s dismissal order did not state whether it was with or without prejudice. Under Rule 41(b), we thus must construe the order as a dismissal with prejudice.”) The Court thus concludes that the district court’s order dismissing the claims against the District, Angie's List, Home Advisor, and Mr. Vogel constituted an adjudication on the merits in a prior action involving the same parties and arising from the same cause of action as that presented in the counterclaims and third-party complaint. Accordingly, the Court dismisses on res judicata grounds the counterclaims against the District. B. The Counterclaims Fail to State a Claim Even if the Court were to conclude that res judicata did not bar the counterclaims, the would be subject to dismissal pursuant to Rule 12(b)(6) 1. Legal Standard ‘A complaint should be dismissed under D.C. Super. Ct. Civ. R. 12(b)(6) if it does not satisfy the requirement of Rule 8(a) that a pleading contain a “short and plain statement of the * To detern claim showing that the pleader is entitled to relie! ine whether a complaint survives a motion to dismiss, a court must determine (1) whether the complaint includes well-pled factual allegations; and (2) whether such allegations plausibly entitle the plaintiff to relief. See Potomac Dev. Corp. v. District of Columbia, 28 A.3d 531, 544 (D.C. 2011). “A claim has facial plausibilitywhen the Plaintiff pleads factual content that allows the court to draw the reasonable inference that the Defendant is liable for the misconduct alleged.” Jd. (quoting Ashcroft v. Iqbal, $56 U.S. 662, 678 (U.S. 2009)). Although a court “must accept as true all of the allegations contained in the complaint,” “threadbare recitals of the elements of a cause of action supported by mere conclusory statements” do not suffice. Sundberg v. TTR Realty, LLC, 109 A.3d 1123, 1128-29 (D.C. 2015) (quoting /qbal, 556 U.S. at 678). 2. The Counterclaims Fail to State a Claim for Tortious Interference The District argues that the counterclaims fail to state a claim for tortious interference because they fail to plausibly allege that the District interfered in any existing business relationship. The Precision parties respond that the counterclaims allege that the District had knowledge of Precision’s relationships with existing clients and knew that Precision would have To prevail on a claim of tortious interference with a contractual or business relationship, the plaintiff must establish (1) the existence of a contractual or business relationship; (2) the defendant’s knowledge of that contract; (3) intentional procurement of a breach of the contract or business relationship; and (4) damages. See Whitt v. Am. Prop. Constr., P.C., 157 A.3d 196, 202 (D.C. 2017). A tortious interference claim must specify the contractual or business relationships with which the defendant intentionally interfered. See Econ, Research Servs. v, Resolution Econs., LC, 208 F, Supp. 3d 219, 229 (D.D.C. 2016) (“As to ERS’s relationships with its client or customers, the Complaint fails to identify the specific business relationships with which defendants are alleged to have interfered or to substantiate ERS’s claim of an expectancy that those relationships would continue, and it therefore fails to plead the existence of valid business relationships with the requisite specificity.”), Relatedly, the plaintiff must plead facts, not justbroad allegations demonstrating that it incurred damages as a result of the defendant's conduct See Gov't Rels. Inc. v. Howe, 2007 US, Dist. LEXIS 4952, at *30 (D.D.C. Jan, 27, 2007) (broad allegations that plaintiff suffered “serious damages, loss of clients, loss of reputation, and... loss of confidential information” are insufficient in the absence of facts demonstrating such damages) In the counterclaims, the Precision parties allege that at the time it filed the OAG complaint and published the accompanying press release, the District “was aware that PCS was an ongoing construction firm in Washington D.C. that was rendering construction services pursuant to contracts it then had in place” and “that had an expectancy for additional business contracts to develop in the future not only with its e isting customers but with new customers as well.” Counter-cl. ff] C69-C70. These allegations, however, fail to identify any specific contractual or business relationships with which the District’s actions interfered. See id., see also Nyambal v. AlliedBarton Sec. Servs,, LLC, 183 F. Supp. 34 309, 316 (DDC. 2016) (citing Kwang Dong Pharm. Co. v. Han, 205 F. Supp. 2d 489, 496-97 (D. Md. 2002) (“[T]ortious interference claims are routinely dismissed where the plaintiff fails to name specific contractual relationships that the defendant allegedly interfered with, or to identify any facts related to future contracts compromised by the alleged interferer.”)). Likewise, the allegation that Precision “has suffered damages to its relations with its present and potential future customers,” Counter-cl, {| C72, is insufficient to satisfy the pleading requirement for damages in such a claim. See Howe, 2007 U.S. Dist. LEXIS 4952, at *30. ious interference counterclaim fails to state a claim Accordingly, the Precision parties’ to for relief and would be subject to dismissal if it were not barred by res judicata 3. The Counterclaims Fail to State a Claim for Libel Per SeThe District argues that the libel per se counterclaim fails as a matter of law because the alleged defamatory publication lacks allegations of criminal conduct and because the judicial proceedings privilege bars the claim. The Precision parties respond that imputed “reprehensible conduct in the management of PCS by its owner Derrick Sieber and, on a project-| project basis, by Stephen Sieber” constitutes libel per se. The Precision parties further argue that the statements in question are not protected by the judicial proceedings privil because they bear no relationship to the legal proceeding. Unlike a typical libel action, which requires only that the publication be injurious to the reputation of another, for a defamatory statement to be actionable as libel per se, “the contents of the defamatory publication must impute. . . the commission of some criminal offense for which [the plaintiff] may be indicted or punished.” Raboya v. Shrybman & Assoc., 777 F. Supp. 58, 59 (DDC. 1991) quoting Farnum v. Colbert, 293 A.2d 279, 281 (D.C. 1972). “The question is whether, from the language attributed to defendant, there is something from which commission of acrime can be inferred.” Id; see also Farmum, 293 A.2d at 281 (observing that accusations of theft of a television set, a money deposit, or even a box of gum are properly characterized as slander per se) The libel per se counterclaim is premised on allegedly false and harmful statements contained in the District’s complaint and the press release issued at the time it filed the OAG complaint. See Counter-cl, ff C36-C42; C46-C50, The Precision parties cite portions of the complaint in which the District alleged that they “totally abandoned projects even when consumers have paid Defendants the full amounts of the contract,” id. 4] C36, “refuse{d] to finish{] the promised scope of work” unless additional sums were paid, id. §] C37, and “harass[ing] and threaten{ing] consumers with whom they have disputes,” id. | C40. The counterclaims alsoidentify portions of the press release that cited portions of the complaint alleging that Precision abandoned a 2017 project and performed substandard work that damaged a neighboring property Id. 4 C49. These allegations, though undoubtedly serious, do not accuse the Precision parties of engaging in any criminal offenses. To the contrary, these allegations were made in a civil complaint alleging violations of remedial statutes and seeking injunctive relief and fines— quintessential civil remedies. See Raboya, 777 F. Supp. at 60 (accusations of civil child neglect did not impute the commission of a crime as a civil neglect proceeding is remedial in nature, a separate criminal statute exists relating to the abuse of children, and the plaintiff acknowledged that she was accused solely of child neglect). Because they fail to allege accusations of criminal misconduct, the counterclaims fail to state a claim for libel per se. Furthermore, to the extent that the libel per se claim is premised on statements contained in the OAG complaint, itis barred by the judicial proceedings privilege. The District of Columbia, like most jurisdictions, “has long recognized an absolute privilege for statements made preliminary to, or in the course of, a judicial proceeding, so long as the statements bear some relationship to the proceeding.” Oparaugo v, Watts, 884 A.2d 63, 79 (D.C. 2005) (citing Finkelsiein, Thompson & Loughran v. Hemispherx Biopharma, Inc., 774 A.2d 332, 338 (D.C. 2001)). The rule provides an absolute privilege “to publish defamatory matter conceming another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as part of, a judicial proceeding . . . if it has some relation to the proceeding,” Id. The privilege ‘applies to judges, court officers, attomeys, parties, grand and petit jurors performing those functions, witnesses and participants in judicial proceedings.” /d. Thus, the Precision parties maynot main a libel action against the District for statements cont ed in the Districts complaint in this matter, as those statements were made as part of the present legal proceeding.* 4 The Counterclaim for Invasion of Privacy is Time Barred The District argues that the counterclaim for invasion of privacy, based on an OAG investigator's alleged forced intrusion into the home where Stephen Sieber resides, is barred by the applicable statute of limitations, The Precision parties respond that the statute of limitations for this claim is governed by D.C. Code § 12-301, which specifies a three-year statute of limitations for any civil action for which a limitation “is not otherwise specially prescribed.” The Court may dismiss a claim under Rule 12(b)(6) for failure to comply with the statute of limitations if the claim is time-barred on the face of the complaint. See Waugh v. Medstar Georgetown Univ. Hosp, 203 A.3d 784, 786 (D.C. 2019). Dismissal on statute of limitations grounds is inappropriate if it is not “conclusive” on the face of the complaint that the plaintiff had actual or inquiry notice of the claims against the defendant outside of the applicable statute of limitations, Capitol Servs. Mgmt, v. Vesta Corp., 933 F.3d 784, 790 (D.C. Cir, 2019), The District of Columbia Court of Appeals has explicitly held that intrusion-based invasion of privacy claims, like the one asserted in the counterclaims, are subject to a one-year statute of limitations because the tort is analogous to false light and defamation claims and protects the same interests, See Greenpeace, Inc. v. Dow Chem. Co., 97 A.34 1053, 1061 (D.C. 2014) (rejecting the argument that invasion of privacy should be subject to a three-year statute of limitations under 12- 301(a)(8)). Here, the alleged invasion of privacy took place on October 19, 2018. See Counter-cl. 1 C5. The counterclaims were filed on November 15, 2019, outside the one-year statute of . ‘The Court declines to reach the issue of whether the District's press release was also subject to the judicial or executive proceedings privileges 15limitations, Although the Precision parties assert that Greenpeace should be overturned, this Court is bound by that precedent. Therefore, the invasion of privacy counterclaim must be dismissed on statute of limitations grounds because it is conclusive on the face of the complaint that the plaintif? had actual or inquiry notice of the claims against the defendant outside of the applicable statute of limitations. See Vesta Corp., 933 F.3d at 790. . The Counterclaims Fail to State a Claim for Civil Conspiracy The District argues that the counterclaims fail to state a claim for civil conspiracy because they fail to plausibly allege the existence of an agreement between the District, ANGI, and Mr Vogel, and because the counterclaims fail to plausibly allege the commission of an underlying tort. The Precision parties maintain that they have adequately pled a civil conspiracy claim. The elements of civil conspiracy are (1) an agreement between two or more persons; (2) to participate in an unlawful act, or in a lawful act in an unlawful manner; and (3) an injury caused by an unlawful overt act performed by one of the parties to the agreement (4) pursuant to, and in furtherance of, the common scheme. Griva Davison, 637 A.2d 830, 848 (D.C. 1994) (citing Hatberstam v. Welch, 705 F 2d 472, 477 (D.C. Cir. 1983)). The counterclaims fail to plausibly allege the existence of an agreement between the District, ANGI, and Mr. Vogel to participate in an unlawful act, Many of the allegations related to coordination are entirely conclusory, devoid of specific factual content. See, e.g., Counter-cl. § C82 (“The unlawful actions of each of the Counter Defendants, as set forth above, were undertaken with the agreement and support of all other Counter Defendants, The common agreement and objective that governed each of their actions was to blacken the reputation of PCS, Derrick Sieber and Stephen Sieber ....")The arguably more specific allegations—for example, that “Home Advisor and Angie’s List removed the PCS profile, ratings and review from their website in coordination with OAG’s lawsuit and press release,” Counter-cl. {| 131—fair no better. As the district court observed in finding these allegations deficient, the “coordination” described in these allegations is equally consistent with “cooperation among the defendants to initiate and conduct a legitimate invest {ion into potential violations of District law by PCS and the Siebers.” See Precision Conmr Sols., 415 F. Supp. 3d at 127 (citing RSM Prod. Corp. v. Freshfields Bruckhaus Deringer U.S. LLP, 682 F.3d 1043, 1051-52 (D.C. Cir. 2012)). This Court likewise concludes that the Precision parties” allegations do not plausibly allege the existence of an agreement to engage in unlawful conduct.” See Paul v. Howard Univ., 754 A.2d 297, 310 & n.27 (D.C. 2000). Furthermore, the Precision parties have not, in their counterclaims, plausibly alleged the See commission of an underlying tort for tortious interference, libel per se, or invasion of privacy Weishapl v. Sowers, 771 A.2d 1014, 1024 (D.C, 2001) (observing that civil conspiracy depends on the performance of some underlying tortious act—it is not an independent action). Because the complaint fails to state a claim for libel or tortious interference, and because there is no other substantive tort alleged against the District of Columbia, the conspiracy count fails to state a claim and is subject to dismissal. See Precision Contr, Sols., 415 F. Supp. 3d at 126 (noting that “no tort claim has been plausibly pled”) a The Precision parties contend that the libel claim was not before the district court when it dismissed the complaint. Yet the basis of that claim—that the District defamed the Precision parties with the allegations in the complaint—was explicitly considered by the district court in dismissing the conspiracy claim. See Precision Contr. Sols., 415 F. Supp. 34 at 126 (observing that the allegedly tortious acts undertaken by the conspirators included “false and defamatory statements’ by the District in its complaint”). 17T. THE SPECIAL MOTIONS TO DISMISS ON ANTI-SLAPP GROUNDS A. The District of Columbia Anti-SLAPP Act “A ‘SLAPP” (strategic lawsuit against public participation) is an action “filed by one side of a political or public policy debate aimed to punish or prevent the expression of opposing points of view.”” Competitive Enter. Inst Mann, 150 A.3d 1213, 1226 (D.C. 2016) (quoting Council of the District of Columbia, Report of Comm. on Public Safety and the Judiciary on Bill 18-893, at 1 (Nov. 18, 2010)), The Anti-SLAPP Act was enacted to “protect targets of meritless lawsuits by creating ‘substantive rights with regard to a defendant's ability to fend off” a SLAPP.” Id. at 1226. Those rights include the filing of special motion to dismiss a complaint, D.C. Code § 16- 5502, as well as a special motion to quash discovery orders, requests, or subpoenas for personal identifying information, id. § 16-5503 The party filing a special motion to dismiss must first make a “prima facie showing” that the Act applies. Jd. § 16-5502(b), see Mann, 150 A.3d at 1232. Once applicability has been established, the burden then shifts to the non-moving party to show “that the claim is likely to succeed on the merits.” D.C. Code § 16-5502(b). If the non-moving party fails to meet that standard, then the motion must be granted and the case will be dismissed with prejudice. Id. §§ 16- 5502(b), (d), B, The AU Defendants Have Made Prima Facie Showings that the Act Applies to the Claims Against Them 1. The AU Defendants In their special motion to dismiss, filed thirty-one days after service of the Precision complaint, the AU defendants contend that the Act applies to the claims against them because they arise from Ms, Delgadillo’s article concerning the OAG complaint, a written statement on a matter of public interest, The Precision parties respond that Ms. Delgadillo’s article merely summarized 18,the OAG complaint and did not advocate a position of her own and that the AU defendants have failed to demonstrate that the intent underlying the Precision parties’ suit was to silence Ms Delgaditlo A party filing a special motion to dismiss under the Anti-SLAPP Act must do so within forty-five days of service of the claim and must 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.” D.C Code § 16-5502(a), (b). The Anti-SLAPP Act defines an “act in furtherance of the right of advocacy on issues of public interest” as (A) Any written or oral statement made: (i In connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; or (Gi) In a place open to the public or a public forum in connection with an issue of public interest; or (B) Any other expression or expressive conduct that involves petitioning the government or communicating views to members of the public in connection with an issue of public interest. Td. § 16-5501(1). The Act defines an “issue of public interest” as “an issue related to health or safety; environmental, economic, or community well-being; the District government; a public figure; or a good, product, or service in the market place.” /d. § 16-5501(3) An “issue of public interest” does not include, however, “private interests, such as statements directed primarily toward protecting the speaker’s commercial interests rather than toward commenting on or sharing information about a matter of public signi The claims against the AU defendants in the Precision complaint arise from the article published on the DCist website by Ms, Delagillo. See generally Precision Compl. That article, 19titled “D.C. Attorney General Sues Home Contractor Over ‘Shoddy’ And ‘Destructive’ Work,” reports that the OAG complaint had been filed and summarizes portions of the OAG complaint and the accompanying press release. See AU Defs.’ Special Mot. To Dismiss, Decl. of Natalie Delgadillo (“Delgadillo Decl.”), Ex. B. The article contains a link to the OAG complaint and concludes with a paragraph providing instruction on how to report consumer protection violations to the OAG’s Office of Consumer Protection. Ld. The article at issue straightforwardly constitutes a written statement made in a place open to the public on an issue of public interest—namely, OAG’s consumer protection suit against a local contractor, a matter related to a “service in the market place,” “community well-being,” and ‘the ict government.” See D.C. Code §§ 16-5501(1)(A) ), (3); see also Boley v. Ad. Monthly Group, 950 F. Supp. 2d 249, 256 (D.D.C. 2013) (statements on magazine’s website were made on a place open to the public) (citing Farah v. Esquire Magazine, Inc., 863 F. Supp. 24 29, 38 (D.D.C 2012)), Makaeff v. Trump Univ., LLC, 715 F.3d 254, 262, (9th Cir. 2013) (observing that under the California Anti-SLAPP act, “statements warning consumers of fraudulent or deceptive business practices constitute a topic of widespread public interest, so long as they are provided in the context of information helpful to consumer”). The article also constitutes a written statement in connection with an issue under consideration by an executive and judicial body, as well as an official proceeding authorized by law. See D.C. Code § 16-5501(1A)(); see also Boley, 950 F Supp. 2d at 256 (statements made by journalist in magazine articles regarding ICE’s arrest, investigation, and administrative charging of a Liberian minister “plainly qualify” as written statements made in connection with an issue under consideration or review by an executive body) The Precision parties argue that Ms. Delgadillo’s article does not implicate the Anti- SLAPP Act because it does not advocate a position, instead merely summarizing the OAG 20complaint. This argument, however, contravenes the plain language of the statute, which applies to “any written or oral statement” made “in connection with an issue under consideration” by an executive or judicial body or “in conection with an issue of public interest.” D.C, Code § 16- 5501(1) (emphasis supplied). Indeed, courts have routinely found that journalism reporting on investigations and litigation conducted by public entities falls within the ambit of the Anti-SLAPP Act, See, e.g., Cornelius v, Chronicle, Inc, 206 A.3d 710, 715 (Vt. 2019) (“We conclude that the articles in this case were exercises of free speech and connected to a public issue because they concerned public safety, law enforcement activity, possible criminal behavior, and the reporting of arrests.”); Quevedo v. Hearst Corp., 2019 Conn, Super. LEXIS 3478, at *10-12 (Conn, Super. Ct. Dec. 19, 2019) (article describing pl tiffs arrest for assault and charges subject to Anti- SLAPP), cf. Fridman v. Orbis Bus. Intelligence Lid., No, 18-CV-919, 2020 D.C. App. LEXIS 220, *13 (DC. June 18, 2020) (holding that factual statements and raw intelligence contained in research report protected under the Anti-SLAPP Act), The Pre jon parties also contend that the Anti-SLAPP Act does not apply because the AU defendants have not demonstrated that the Precision parties intended to chill the AU defendants’ speech by filing this suit, citing Doe No. 1 v. Burke, 91 A.3d 1031 (D.C. 2014). Yet nowhere in Burke does the Court of Appeals state that the Anti-SLAPP Act requires a party filing a special motion to dismiss to prove the intent of the non-moving party. See generally id. Indeed, such a holding would be contrary to the text of the Act, which clearly outlines the burden-shifting analysis discussed in Burke, Mann, and many other decisions, and which at no point requires the moving party to prove intent. See D.C. Code §§ 16-5501, 5502 21Accordingly, the Court finds that the AU defendants have made a prima facie showing that the claims against them arise from an act in furtherance of the right of advocacy on issues of public interest. See D.C. Code § 16-5502(a), (b). 2. The ANGI Defendants Inits special motion to dismiss, which was filed within the forty-five day period, the ANGI defendants argue that the claims against them stem from their removal of Precision’ profile and reviews from the Home Advisor and Angie’s List websites, and that that act constitutes “expressive conduct” covered by the Anti-SLAPP Act. The Precision parties argue that the act of removing Precision’s profile and reviews did not constitute expressive conduct, as it was unaccompanied by any statements explaining why those items were removed. As noted above, the Anti-SLAPP Act covers “expressive conduct” as well as express oral and written statements. D.C. Code § 16-5501(1)(B). “Expressive conduct contains both speech and non-speech elements.” United States v. Kichman, 731 F. Supp. 1123, 1128 (D.D.C, 1990), Although the Court of Appeals has not yet defined the contours of what constitutes “expressive conduct” under the Act, it has indicated that the trial courts should look to the context of expression to determine its meaning. See Fridman, 2020 D.C. App. LEXIS 220, at *13 (“It is certainly possible that statements of fact not overtly couched as an opinion can communicate a view when considered in context and as a whole.” Here, it is undisputed that the removal of Precision’s profile and reviews was unaccompanied by any statement explaining that its removal was based on OAG's consumer complaint. Nor is there any evidence that the removal was accompanied by a link to the OAG complaint or any other symbol or statement imbuing that removal with expressive content, The fact that the removal of Precision’s profile occurred near the time of the filing of the OAG 22complaint might suggest that the complaint caused ANGI to remove the profile, but standing alone, that fact does not transform the silent removal of the profile to an act of solidarity with the OAG complaint, notwithstanding the Precision parties’ allegations to the contrary Under these circumstances, the Court cannot conclude that the act of removing Precision’s profiles and reviews constituted expressive conduct that “communicat{ed] views to the public.” Id. § 16-5501(1). Accordingly, the Court finds that ANGI has not made a prima facie showing that the Act applies, and denies ANGI’s special motion to dismiss, Because, however, the Court does not find that the motion was “frivolous and brought in bad faith” or designed to cause unnecessary delay, it declines to award the non-moving party fees and costs. See D.C. Code § 16- 5504(b). C. The Precision Parties Have Not Demonstrated a Likelihood of Success on their Claims Against the AU Defendants Once the moving party has made a prima facie showing, the burden then shifts to the non- moving party to “demonstrate{] that the claim is likely to succeed on the merits.” D.C. Code § 16- 5502(b). Satisfying this burden “requires more than mere reliance on allegations in the complaint, and mandates the production or proffer of evidence that supports the claim.” Mann, 150 A.34 at 1233. The court may evaluate “the likely success of the claim by asking whether a jury properly instructed on the applicable legal and constitutional standards could reasonably find that the claim is supported in light of the evidence that has been produced or proffered in connection with the motion.” Jd. This inquiry helps to weed out “meritless litigation by ensuring early judicial review of the legal sufficiency of the evidence, consistent with First Amendment principles, while preserving the claimant’s constitutional right to a jury trial.” Jd. If the nonmoving party cannot meet this burden, the special motion to dismiss must be granted and the complaint dismissed with prejudice. D.C. Code § 16-5502(d); see, e.g., Manm, 150 A.3d at 1232 23The Precision parties have failed to produce evidence demonstrating that they are likely to succeed on their claims against the AU defendants, The only evidence offered by the Precision parties are the declarations of Stephen Sieber and attorney Edward Lyle. See generally Pls.” Opp’n to AU Def,’ Special Mot. To Dismiss, Decl. of Stephen Sieber (“Sieber Decl.”) & Decl. of Edward Lyle (“Lyle Decl.”). Mr. Sieber’s declaration details how his son, Derrick Sieber, received a call asking for Precision’s side of the story shortly before the publication of the Delgadillo article. See Sieber Decl. 3. Mr. Sieber states further that he “was angry and upset that Ms. Delgadillo had not given us more of an opportunity to respond in her article than she had” and that “{fJar from trying to intimidate Ms. Delgadillo into silence through a lawsuit, I was trying to get her to publish again and this time tell our side of the story as well.” /d. 4/4. Mr. Sieber maintains that his intent in filing suit against the AU defendants was not to intimidate or silence Ms. Delgadillo, d. $¥ S- ey is declaration his interactions 7. Mr. Lyle, counsel for Precision and Derrick Sieber, des in with counsel for the AU defendants leading up to the filing of the Precision complaint, See generally Lyle Decl Neither of these declarations, individually or collectively, establish a likelihood of success on the merits. Indeed, the Precision parties do not contend that they have met the burden imposed by the statute, arguing instead that they should be entitled to targeted discovery to bolster their claims against the AU defendants. Such discovery, they argue, would be targeted toward Ms Delgadillo’s “role, acts and omissions, and relation(s) with other defendants in this proceeding, all as alleged in the Complaint.” ‘The Anti-SLAPP Act, however, provides that the filing of special motion to dismiss automatically stays discovery, and that targeted discovery may be permitted only “[w]hen it appears likely that [such] discovery will enable the plaintiff to defeat the motion and that the 24discovery will not be unduly burdensome.” D.C. Code § 16-5502(d). As the Court of Appeals has recently clarified, “the clause ‘[wJhen it appears likely that targeted discovery will enable the n’ creates a standard that is difficult to meet.” Fridman, 2020 D.C plaintiff to defeat the m App. LEXIS 220, at *34-37. “Thus, the language of § 16-5502(c) indicates that discovery normally will not be allowed.” /d. (holding that the trial court did not abuse its discretion in denying targeted discovery as appellants “have not shown why discovery will likely produce evidence more persuasive than what we have rejected”), The Precision parties have not met the high standard required to justify targeted discovery. They have not explained how obtaining discovery from Ms. Delgadillo will establish that her article, which they themselves characterize as summarizing a public pleading filed by a government entity, can serve as the basis for libel, conspiracy, or the other tort claims raised in the jon parties’ request for targeted Precision complaint. Accordingly, the Court denies the Preci discovery and dismisses the claims against the AU defendants with prejudice, See D.C, Code § 16- 5502(d). Il. THE MOTIONS TO DISMISS THE PRECISION COMPL: RULE 12(b)(6) T PURSUANT TO A Res Judicata Bars the Claims Against ANGI The ANGI defendants argue in their motion to dismiss pursuant to Rule 12(b)(6) that the claims against them in the Precision complaint should be dismissed on res judicata grounds in light of the district court’s dismissal of the D.D.C. complaint. The Precision parties argue, as they did in response to the District's motion to dismiss their counterclaims, that because the district court only dismissed the federal claim with prejudice, res judicata does not bar these claims. As previously discussed, the doctrine of res judicata bars the re-litigation of claims that were or could have been raised in a prior suit involving the same parties when there was a judgment 25on the merits. Smith, 150 A_3d at 1272 (citing Jenkins, 562 A 2d at 613), see also Patton, 746 A.2d at 870 (doctrine bars claims that were raised or could have been raised arising out of the same nucleus of facts). Here, there is no dispute that the federal suit and the Precision complaint involve the same parties, including Precision, the Siebers, the District, Home Advisor, Angie’s List, and Mr. Vogel. There is also no dispute that the Precision complaint and the D.D.C, complaint concern the same subject matter and arise of the same nucleus of facts. Like the D.D.C. complaint, the Precision complaint alleges that ANGI conspired with OAG and Mr. Vogel to harm Precision by removing Precision’s profile and reviews from the Home Advisor and Angie's List websites. See Precision Compl. $f {#) 89-92, 134-35; see also D.D.C, Compl. Id. $f] 49-97, 98-117 (alleging that ANGI violated the CFRA, tortuously interfered in Precision’s business relationships, and cast Precision ike the D.D.C in a false light by removing Precision and its profiles from its websites). And complaint, the Precision complaint alleges that Mr, Vogel harmed precision by falsely accusing it of planting fake reviews on its profile. See, e.g., Precision Compl. {| 41-50, 136-64; see also D.D.C. Compl. €¥ 121-25 (allegation that Mr. Vogel transmitted false information about Precision to OAG). The D.D.C. complaint asserted claims of tortious interference, false light, and civil conspiracy against the ANGI defendants, see generally D.D.C, Compl., broadly mirroring the causes of action for tortious interference, intentional infliction of emotional distress, civil conspiracy asserted against ANGI in the Precision complaint, see generally Precision Compl Finally, as discussed above, the district court’s dismissal of the D-D.C. complaint constituted an adjudication on the merits, See supra Part LA. The Precision parties argue that the district court did not explain the basis of its dismissal with prejudice as required, suggesting that the dismissal should be understood as being without prejudice. See Firestone v. Firestone, 76 F.3d 261205, 1208 (D.C. Cir. 1996). Yet the Precision parties chose not to file an appeal or motion for reconsideration, avenues for relief available if they felt the district court’s order was not adequately reasoned. Moreover, as discussed above, these considerations do not overcome the plain language of Fed. R. Civ. P. 41(b), which unambiguously provides that unless the dismissal order states otherwise, it operates as an adjudication on the merits. Accordingly, the claims against ANGI in the Precision complaint are barred by res judicata B. The Precision Complaint Fails to State a Claim for Libel Per Se Against the AU Defendants (Count 1) The AU defendants argue that the plaintiff's claim of libel per se fails because (1) the plaintiffs fail to allege any portion of the DCist article that is false and defamatory and (2) the article, which merely reported on the OAG complaint, is protected by the fair reporting privilege. The Precision parties counter that Ms, Delgadillo failed to verify the information in the OAG complaint before disseminating it in her article, and that the fair reporting privilege does not apply in the presence of actual malice. To state a claim for libel, a plaintiff must allege, inter alia, “that the defendant made a false and defamatory statement conceming the plaintiff.” Oparango, 884 A.2d at 76. Here, the Precision parties note that Ms, Delgadillo’s article reports on the allegations made by the District in the OAG complaint, but nowhere allege that the article inaccurately reported on those allegations or independently levied false accusations against the Precision parties, See Precision Compl. $f] 187- 95. To the contrary, in their opposition to the AU defendants’ special motion to dismiss, they acknowledge that [hler article never says that the statements she was making concerning PCS and the Siebers were views of her own. Rather, the initial edition of her article was, at least ostensibly, focused on the OAG?s filing of its complaint and press release concerning PCS and the Siebers. Nowhere has Ms. Delgadillo said in 27her article, furthermore, that she agreed with OAG’s Complaint or in any way adopted OAG’s views as her own Opp’n to AU Defs.’ Special Mot. To Dismiss at 7. Because the Precision complaint fails to identify any false statements made in the article, which reported on the allegations in a pleading filed by OAG and the accompanying press release, the Precision complaint fails to satisfy the first element of a libel claim. Moreover, the libel per se claim asserted against the AU defendants is also subject to dismissal under the fair reporting privilege. The fair reporting privilege provides that defamatory material in the report of any official proceeding is conditionally privileged if the report is (a) accurate and complete, or a fair abridgement of what has occurred, and (b) published for the purpose of informing the public as to a matter of public concern, Phillips v. Evening Star Newspaper Co., 424 A.2d 78, 88 (D.C. 1980) (citing Restatement (Second) of Torts, § 611 (Tent. Draft No. 20, 1974)). The privilege applies to reports of proceedings before any court as well as the actions of executive bodies authorized by law to perform public duties. Jd. “In order to avail itself of the privilege, the publisher must give fair attribution to the source of the alleged official record.” Oparaugo, 884 A.2d at 89. “The privilege protects the accurate report of even false information provided it is information obtained from an official record and proper attribution is given to its source.” /d.; accord Phillips, 424 A.2d at 88 (“Misstatements of fact as well as opinion are protected under this reporting privilege.”) Ms. Delgadillo’s article concerns the filing of the OAG complaint against the Precision parties, an act commencing a judicial proceeding and undertaken by an executive body pursuant to its public duties. There is no allegation that the article inaccurately summarizes the allegations contained in the OAG complaint and its accompanying press release. Indeed, a comparison of the le tothe OAG complaint reveals that the former accurately reports on the allegations contained 28in the latter. Compare Delgadillo Decl., Ex. B with OAG Comp1.® The article was published in a public forum regarding a matter of public concern, See Delgadillo Decl., Ex. B. And throughout, the article attributes the allegations about the Precision parties to the OAG. See id. Indeed, as noted above, the Precision parties have acknowledged that “[nJowhere has Ms, Delgadillo said in her article... that she agreed with OAG’s Complaint or in any way adopted OAG’s views as her own.” Opp’n to AU Defs.’ Special Mot. To Dismiss at 7, The Precision parties point out that the privilege does not apply if the article was published with malice—that is, knowledge that it was false or with reckless disregard as to whether it was false or not. See Johnson v. Johnson Publishing Co., 271 A.2d 696, 698 (D.C. 1970), Kahl v. Bureau of Nat'l Affairs, Inc., 856 F.34 106, 115 (D.C. Cir. 2015) (defining actual malice). Yet, as discussed above, the Precision complaint is devoid of allegations that the article falsely or inaccurately reported on the OAG complaint and press release. Accordingly, the libel per se claim against the AU defendants is subject to dismissal under the fair reporting privilege C. The Complaint Fails to State a Claim for Tortious Interference Against ANGI and the AU Defendants (Count III) The ANGI defendants argue that the Precision complaint fails to state a claim for tortious interference upon which relief can be granted because (1) the complaint does not identify any existing valid contractual or other business relationships interfered with; (2) the plaintiffs have not i: Although a court ordinarily cannot consider material outside of the four comers of the complaint when resolving a motion to dismiss, documents appended to a motion to dismiss whose authenticity are not disputed may be considered in resolving the motion when they are referred to in the complaint and are integral to the claims therein. Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004) (citing, e.g., United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) and Chambers v. Time Warner, Ine., 282 F.3d 147, 152-53 (2d Cir. 2002)). Here, the AU defendants have attached the Delgadillo article to their special motion to dismiss, the article is integral to the libel claims asserted against the AU defendants, and the Precision parties have raised no dispute about the authenticity of the articles attached to that motion 29pled specific contracts or expectancies as required to state a claim for tortious interference under District law; and (3) public policy dictates that Home Advisor and Angie’s List cannot be forced to feature or include PCS on their websites despite the numerous violations identified by OAG. See ANGI 12(b)(6) Mot. to Dismiss at 13-14. The AU defendants argue that the tortious interference claim against them fails because the complaint fails to allege facts demonstrating a specific intent to interfere with Precision’s business relationships and because the only conduct that could give rise to such a claim against them—the publication of Ms. Delgadillo’s article on the OAG complaint—was lawful and privileged. See AU Def’.’ Special Mot. to Dismiss at 15-16. The Precision parties counter that their allegations concerning future business contracts they reasonably expect to receive in the future are sufficient to state a claim. See Opp'n to ANGI 12(b)(6) Mot. to Dismiss at 12-13. The Precision parties further maintain that they have adequately pled Ms. Delgadillo’s intent and that her publication of the article was not privileged. See Opp'n to AU Defs,’ Special Mot. to Dismiss at 16-17 The tortious interference claim contained in the Precision complaint fails for the same reason the counterclaim for tortious interference discussed above failed to state a claim. See supra Part LB.2. As noted above, to state a claim for tortious interference, a plaintiff must specify the contractual or business relationships with which the defendant intentionally interfered. See Econ. Research Servs., 208 F. Supp. 3d at 229. The Precision complaint alleges that “[a]t the time of the OAG Complaint and Press release, PCS also had expectancies of gaining hundreds of new contracts from D.C. consumers based on its prestigious A+ rating at the BBB as well as the 105 glowing ratings and reviews posted by District consumers on both the Home Advisor and Angie’s list websites[.]” Precision Compl. {| 204. Yet, as previously discussed, broad allegations of expected future business are insufficient to support a claim for tortious interference. See Keon. 30Research Serve., 208 F. Supp. 3d at 229 (allegation that “defendants intentionally interfered with ERS’s relationships with its customers and employees with which ERS had ‘an expectancy of [] continuing business relationship[s]’ and a corresponding ‘probability of future economic benefit to ERS” insufficient to state a claim), Kwang Dong Pharm. Co., 208 F. Supp. 2d at 497 (dismissing tortious interference claim based on future business expectancy because the plaintiff “has not pointed to any specific contractual relations that {the defendant] allegedly interfered with”), Accordingly, Court II of the Precision complaint fails to state a claim for tortious interference. The Court also finds that to the extent the tortious interference claim against the AU defendants is premised on the publication of Ms. Delgadillo’s ai le, it fails to state a claim because the article is subject to the fair reporting privilege, as discussed above. For that reason, to0, the tortious interference claim agai st the AU defendants is subject to dismissal D. The Complaint Fails to State a Claim for Intentional Infliction of Emotional Distress against ANGI and the AU Defendants (Count V) ‘The ANGI defendants argue that their justified removal of Precision’s profile and reviews cannot form the basis of a claim for intentional infliction of emotional distress (“IED”). See ANGI 12(b)(6) Mot. to Dismiss at 16-17 (quoting Precision Contr. Sols., 415 F. Supp. 3d at 124). The AU defendants similarly argue that the conduct alleged in the IIED count is not the kind that would support a viable ITED claim, AU Def.” Special Mot. to Dismiss at 14-15. The Precision parties counter that the removal of Precision’s profile and reviews was illegal and the question of whether that act constitutes outrageous conduct is a question of fact to be decided by a jury. See Opp’n to ANGI 12(b)(6) Mot. to Dismiss at 14; Opp’n to AU Def’.” Special Mot. to Dismiss at 16-17. To state a claim for intentional infliction of emotional distress, a plaintiff must show: “(1) extreme and outrageous conduct on the part of the defendant which (2) intentionally or recklessly 31(3) causes the plaintiff severe emotional distress.” Minch v. District of Columbia, 952 A.24 929, 940 (D.C. 2008). “Liability will be imposed only for conduct so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Homan v, Goyal, 711 A.2d 812, 818 (D.C, 1998). The actions allegedly undertaken by ANGI and the AU defendants simply do not approach this standard of conduct. The removal of Precision’s profile and reviews from the ANGI websites cannot be characterized as going beyond all possible bounds of decency. See id. Likewise, the publication of an article on a website summarizing an OAG enforcement action cannot plausibly be characterized as an act utterly intolerable in a civilized community. See id. Nor does the allegs mn that these acts were part of a broad conspiracy to harm Precision plausibly elevate this conduct to the requisite level of outrageous conduct. See, e.g., Precision Contr. Sols., 415 F. Supp. 3d at 127 (finding that the allegations of conspiracy in the D.D.C. complaint do not plausibly suggest agreement to engage in an unlawful or tortious act and are just as much if not more in line with “cooperation among the defendants to initiate and conduct a legitimate investigation into potential violations of District law by PCS and the Siebers”). Accordingly, the Precision complaint fails to satisfy the first element of an IIED claim E. The Court Dismisses the Claim for Respondeat Superior (Count VI) The Precision parties acknowledge that Count VII should be dismissed, as respondeat superior is not a separate cause of action but a theory of liability. Accordingly, the Court dismisses that count The Complaint Fails to State a Claim for Unlawful Conspiracy Against ANGI and the AU Defendants (Count VII) ‘The Court also concludes that the Precision complaint fails to plausibly allege a claim of conspiracy against ANGI and the AU defendants. As discussed above, the Precision complaint 32fails to allege the performance of an underlying tort by either group of defendants. See Weishapl, 771 A2d at 1024, In addition, the conspiracy allegations in the Precision complaint do not plausibly allege the existence of an agreement to engage in unlawful conduct. Although the Precision parties argue that the Precision complaint contains additional allegations regarding the conspiracy involving ANGI and the AU defendants, see Opp’n to ANGI 12(b)(6) Mot. to Dismiss at 8-11, these supplemental allegations contain familiar assertions regarding cooperation between OAG and ANGI, allegations that the district court and this Court have already found insufficient to plausibly allege the existence of an agreement to engage in unlawful conduct. See Precision Compl. $9 58, 70, 84- 2; see also Precision Contr. Sols., LP, 415 F. Supp. 3d at 127. The Precision complaint thus fails to state a claim for conspiracy as well. IV. THE PRECISION PARTIES’ MOTION FOR LEAVE TO FILE AMENDED COUNTERCLAIMS IN 2019 CA 005047 B The Precision parties seek leave to file amended counterclaim against the District in case 2019 CA 005047 B, arguing that the factors the Court must consider when assessing such a motion weigh in favor of granting them leave to file, The District opposes the motion, arguing that any such amendment would be futile, as the proposed first amended counterclaims suffer from the same defects that required dismissal of the original counterclaims. A. Legal Standard D.C. Superior Ct. Civ. R. 15(a)(3) provides in relevant part that “a party may amend its pleading only with the opposing party’s written consent or the court's leave. The court should freely give leave when justice so requires.” See also Johnson v. Fairfax Village Condominium IV Unit Owners Ass'n, 641 A.2d 495, 501 (D.C. 1994) (“Leave to amend is to be granted freely ‘when justice so requires."”) (quoting Rule 15(a)), “Nonetheless, that liberalism does not mean 33amendments must be granted automatically.” Sherman v, Adoption Center of Washington, Inc., 741 A.2d 1031, 1037-38 (D.C. 1999), “The following factors guide the exercise of a court’s discretion in considering a motion for leave to amend: (1) the number of requests to amend; (2) the length of time the trial has been pending; (3) the presence of bad faith or dilatory reasons for the request; (4) the merit of the proffered amended pleading, and (5) any prejudice to the non-moving party.” Johnson, 641 A.2d at 501 (quotation and citation omitted). More specifically, the Court may consider whether the plaintiff had all the necessary facts to state the new claims it seeks to assert atthe time it filed its previous pleading, whether adding a new theory of liabi would prejudice the other party by causing additional discovery time and expense, and whether the plaintiff failed to put forth any satisfactory reason for the delay in amending its complaint. See Flax v. Schertler, 935 A.2d 1091, 1105 (D.C. 2007). A court may properly deny a motion for leave to amend based on futility “if the amended pleading would not survive a motion to dismiss.” Jn re Interbank Funding Corp. Sec Litig., 629 F.3d 213, 218 (D.C. Cir. 2010) B, Analysis of the Relevant Factors Warrants Denial of the Motion for Leave to File Amended Counterclaims I ‘he Merits of the Offered Pleading The proposed amended counterclaims contain five counts. See generally Proposed First Am, Counter-cl, (“FAC”), The first count asserts a claim of libel per se, which is premised on the filing of the OAG complaint and the issuance of the accompanying press release containing false information about Precision. FAC §¥ C159-C170 (citing [J C84-C94). This claim arises from the same subject matter as that addressed in the federal case, see, ¢.g., D.D.C. Compl. 130, which the district court resolved on the merits, and is therefore barred by res judicata, see supra Part LA 34The second proposed counterclaim asserts tortious interference based on the District's filing of the OAG complaint and accompanying press release, which resulted in the loss of Precision clients. See FAC J C171-C190. This claim, too, arises from the same nucleus of facts as that addressed in the conspiracy claim asserted in the D.D.C. complaint, See, e.g, D.D.C Compl. ff 130, 133. Because the district court resolved that claim on the merits, the tortious interference counterclaim too is barred by res judicata, See supra Part LA. The third proposed counterclaim asserts a claim for abuse of process. See FAC J C211- 221, The Precision parties allege that the OAG instituted this action for improper reasons namely, to divert attention from the public exposure of the intrusion of an OAG investigator into the residence of Stephen Sieber and to bolster the political career of AG Racine. Id. §¥[C193, C198- C199. The Precision parties further allege that the OAG abused the legal process by including in ions about Precision. /d. §{ €200-C210. the OAG complaint false and defamatory alleg Although the D.D.C. complaint did not contain an abuse of process claim, the factual allegations underlying that claim were included as part of the conspiracy claim in the federal complaint. More specifically, the D.D.C. complaint discussed the allegation that an OAG investigator forced his way into Mr. Sieber’s residence, as well as the allegation that the OAG complaint was filed in bad faith as part of a conspiracy to “blacken the reputation” of Precision D.D.C. Compl. $¥ 125, 129-33. The D.D.C. complaint dismissed by the district court also included the allegation the OAG complaint contained false and defamatory information about Precision Id.; Precision Comtr. Sols., 415 F. Supp. 3d at 126. Because the abuse of process counterclaim arises out of the same nucleus of facts as those addressed in the D.D.C. complaint, itis barred by res judicata. See supra Part LA. 35The fourth counterclaim asserts a claim of IIED against the District based on the OAG investigator's forced entry in Stephen Sieber’s residence. FAC ff] C211-21. Beyond the fact that this allegation formed part of the conspiracy claim alleged in the D.D.C. complaint, the claim is also barred by the statute of limitations, Generally, under D.C. law, a claim for ITED has a three- year statute of limitations. D.C. Code § 12-301(8). However, itis “well settled that in determination of the applicable statute of limitations, the plaintiff's characterization of the claim is not controlling.” Saunders v. Nemati, 580 A.2d 660, 661 (D.C. 1990). Indeed, an exception to the three-year limitations period applies when a claim for IIED is based on another tort that has a prescribed statute of limitations and “the emotional distress aspect of the claim [is] essentially an outgrowth of the other pleaded tort[].” Jd. at 662; Randall-Speranza v. Nassim, 107 F.3d 913, 920 (D.C. Cir. 1997) (observing that “a claim for emotional distress that is ‘intertwined with any of the causes of action for which a period of limitations is specifically provided’ is subject to the limitations period for the intertwined claim), Here, the forced entry into Stephen Sieber’s residence, upon which the ITED claim is based, grows out of and is intertwined with the intrusion-based invasion of privacy claim asserted in the original counterclaims. See FAC ff C211-221; see also supra Part LB.4. As discussed above, a claim for invasion of privacy has a one-year statute of limitations. See Greenpeace, 97 A.3d at 1061. The intrusion at issue occurred on October 19, 2018, see FAC § C5, more than one year before the filing of this motion for leave to file amended counterclaims on March 3, 2020. Accordingly, the IED claim, which is entirely “intertwined” with the invasion of privacy claim, is subject to the invasion of privacy claim’ s limitations period, and consequentially barred by the statute of limitations, See Saunders, $80 A.2d at 662. 36The fifth and final counterclaim asserts that the District was part of a broad conspiracy with ANGI and Mr. Vogel to harm Precision, FAC 4] C222-32, According to the proposed amended counterclaims, the OAG’s role in this conspiracy was to file a complaint and press release containing false defamatory material about Precision. /d. § 225; see also id. § 225. These allegations were squarely addressed by the district court in dismissing the D.D.C. Compl The other allegedly tortious acts that were undertaken in tandem to harm PCS and the Siebers’ mentioned in plaintiffs’ opposition to the Districts motion— breach of contract and filing a false claim in Superior Court by Vogel, false and defamatory statements by the District in its complaint, forcible entry [into] Stephen Sieber’s home by an investigator from OAG—also cannot form the basis for a civil conspiracy claim. Even setting aside the question of whether these acts are sufficiently pled in the complaint, the complaint does not plausibly allege any agreement to engage in breach of contract, false statements, or forcible entry. Precision Comtr. Sols., 415 F. Supp. 3d at 126-27 (internal quotation marks, citations, and bracket omitted). This claim too is barred by res judicata To be sure, the proposed amended counterclaims suffer from additional defects. The conspiracy claim is not supported by a viable underlying tort, and the tortious interference claim, while providing numbers of prospective clients lost, still fails to identify specific customers and contracts Precision lost out on because of the tortious activity of the defendants. The allegations of motive underlying the abuse of process claim are conclusory and the allegations concerning the District’s behavior in this litigation do not plausibly give rise to an inference of a nefarious motive The libel per se claim is still barred at least in part by the judicial proceedings privilege. Suffice it to say, however, that these first amended counterclaims would not survive a motion to dis! ‘The futility of these claims warrants denial of the motion for leave. See In re Interbank Funding Corp. Sec. Litig., 629 F.3d at 218. 37. Number of Requests to Amend This motion represents the Precision parties’ first motion for leave to amend its counterclaims. This fact weighs in the Precision parties’ favor. 3. Length of Time the Trial Has Been Pending The motion for leave to amend was filed on March 3, 2020, more than seven months after the filing of the OAG complaint. This delay in filing weighs somewhat against granting the motion, though the fact that the parties are still engaged in discovery lessens the significance of this delay. 4. The Presence of Bad Faith or tory Conduct The District has presented no evidence that the motion is being filed in bad faith or dilatory reasons. This weighs in favor of granting the motion. 5. Prejudice to the Non-Moving Party The Court di ss no substantial prejudice to the District caused by the proposed amended counterclaims, as they largely mirror and expand upon the allegations that the District already litigated in connection with the original counterclaims and the D.D.C. complaint. The Precision parties did, however, wait until the District had completed extensive briefing on its motion to dismiss the original counterclaims before filing its motion for leave to file amended counterclaims. 6. Conclusion Although several of the factors weigh in favor of granting the motion for leave to amend, the fact that the proposed amended counterclaims would not survive a motion to dismiss warrants denial of the motion. Accordingly, the Court denies the Precision parties’ motion for leave to file amended counterclaims 38CONCLUSION For the foregoing reasons, and based on the entire record herein, it is this 25th day of June, 2020, hereby ORDERED that the District’s motion to dismiss the counterclaims filed in 2019 CA 005047 B on December 6, 2019 is GRANTED; and itis further ORDERED that the counterclaims filed in 2019 CA 005047 B are DISMISED WITH PREJUDICE; and itis further ORDERED that the plaintiffs’ motion for leave to file amended counterclaims, filed in 2019 CA 005047 B on March 3, 2020, is DENIED; and further ORDERED that the special motion to dismiss filed by American University and Natalie Delgadillo in 2020 CA 1596 B on April 27, 2020 is GRANTED, and it is further ORDERED that the special motion to dismiss filed by Angie’s List, Inc. and Home Advisor, Inc. in 2020 CA 1596 B on April 13, 2020 is DENIED, and it is further ORDERED that the motion to dismiss pursuant to Rule 12(b)(6) filed by Angie’s List, Inc. and Home Advisor, Inc. in 2020 CA 1596 B on April 13, 2020, is GRANTED, and it is further ORDERED that the claims in 2020 CA 1596 B against American University, Natalie Delgadillo, Angie’s List, Inc., and Home Advisor, Inc. are DISMISSED WITH PREJUDICE. SO ORDERED. | i& i PARK Associate Judge Copies via CaseFileXpress to Counsel of Record, Copies via USPS to: Stephen C. Sieber 1805 45" Street NW Washington D.C. 20007 39BTEHAHI A ((o Memo of Law) IN THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CIVIL DIVISION ) CLOSE IT! TITLE SERVICES, INC. et al, ) Plaintiffs, ) ) Case No. 2018 CA 005391 B ve ) ) Judge William M. Jackson MICHAEL S. NADER, et al, ) Defendants. ) ) ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS This matter is before the Court on Defendants Sean Smith and Erin Wrona’s Motion to Dismiss and Special Motion to Dismiss, filed on August 24, 2018. Plaintiffs filed an opposition to both Motions to Dismiss on September 7, 2018. Defendants Smith and Wrona then filed a reply on September 14, 2018, Defendants Michael Nadel and McDermott Will & Emery then filed their Motion to Dismiss and Special Motion to Dismiss on September 18, 2018. No opposition was filed by the Plaintiffs. Upon consideration of the motions, the opposition, the entire record herein, and for reasons stated below, the Court finds that the Defendants’ Motions to Dismiss will be GRANTED. |. FAC |AL BACKGROUND In May of 2017, Mr. Sean Smith and Ms. Erin Wrona hired Federal Title to assist them in the purchase of a Cleveland Park home, See Smith v. Federal Title & Escrow Co., Case No. 17~ ev-1580, at Compl. §|15 (D.D.C,) (filed Aug. 4, 2017) (Lamberth, J.). On the same day, Mr Smith and Ms, Wrona received instructions from the settlement coordinator, Melina Schifflett, to wire $200,000 to Federal Title as an initial earnest-money deposit on the home. Jd. 17. Mr Smith and Ms, Wrona promptly followed these instructions and wired the money. /d. 18. Four days later, Mr. Smith and Ms. Wrona received an email sent from Ms. Schifflett’s e-mail accountrequesting that they wire the final closing amount to a Chase bank account in the name of Federal Title, with further credit to JMZ Equities, LLC, as the account to which funds should be transferred. Jd. §| 20-22. Prior to completing the transaction, Mr. Smith inquired as to why a different account was being used for this transaction, and was allegedly reassured by Ms Schifflett of it legitimacy. Id. §]24-25. Mr. Smith then wired $1.57 million to the account /d. J 26. On Jun 19, 2017, Mr. Smith and Ms, Wrona visited the Federal Title offices to sign the closing documents, however, during this visit, Mr. Todd Ewing instructed them that Federal Title never received the funds. /d. 31 & 35. On August 4, 2017, Mr. Smith and Ms. Wrona filed a lawsuit against Federal Title, Mr. Ewing, and other defendants in the U.S. District Court for the District of Columbia. Shortly after the filing of the lawsuit, a reporter from WAMNU 88.5 FM contacted Mr, Michael Nadel of McDermott & Emery, who is Mr. Smith and Ms, Wrona’s attorney in the District Court case, Ex, 2, Nader’s Mot. to Dismiss, On August 8, 2017, WAMU published a story regarding the complaint online and on-air, and in that story, Mr. Nader provided the following quote: Federal Title either caused our money to be stolen or stole it, and we need to get our money back. We don’t have any evidence that it happened because of hackers other than Federal Title’s say-so. Federal Title never called Sean Smith and said, ‘Bring your money to closing,” and didn’t even bring it up until the middle of closing. So if they weren't responsible for helping steal the money, it certainly seems like they knew well in advance of that closing that the money was gone. Their conduct shows that. Compl., Ex. A at 2-3. Federal Title and Mr. Ewing then filed this action on July 27, 2018, alleging that Mr. Nadel’s statements to the media were false and defamatory and caused damage to their business and reputation. Compl. 2. On August 24, 2018, Defendants Mr. Smith and Ms. Wrona filed a Motion to Dismiss under Rule 12(b)(6) for failure to state a claim, and also filed a Special Motion to Dismiss on the same day under the District of Columbia's Anti-SLAPPstatute, On September 7, 2018, the Plaintiffs filed their opposition to both the Motion to Dismiss and the Special Motion to Dismiss, Defendants Smith and Wrona then filed a reply on September 14, 2018. On September 18, 2018, Defendants Michael Nader and McDermott Will & Emery filed their own Motion to Dismiss for failure to state a claim and Special Motion to Dismiss under the D.C. Anti-SLAPP statute. I, STANDARD OF REVIE' a, Rule 12(b\(6) Dismissal under Rule 12(b)(6) is warranted “where the complaint fails to allege the elements of a legally viable claim.” Greenpeace, Inc. v. Dow Chem. Co., 97 A.3d 1053, 1060 (D.C. 2014) (quoting Chamberlain v. Am, Honda Fin. Corp., 931 A.24 1018, 1023 (D.C. 2007), citing Potomac Dev. Co. v. District of Columbia, 28 A.3d 531, 543 (D.C. 2011)), In deci nga Rule 12(b)(6) motion this court must accept “all of the allegations in the complaint as true” and. “construe all facts and inferences in favor of the plaintiff.” /d. (quoting Murray v. Wells Fargo Home Mortg., 953 A.2d 308, 316 (D.C. 2008). Nevertheless, to survive a motion to dismiss a claim must have facial plausibility, that is, “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Potomac, 28 A.3d at $44 (quoting Ashcroft v. Iqbal, $56 U.S. 662, 677 (2009)). Conclusory pleadings are not entitled to an assumption of truth and will not sustain a complaint. Grimes v. District of Columbia, 89 A.34 107, 112 (D.C. 2014) (internal citations omitted). Neither will "formulaic recitation{s] of the elements of a cause of action.” Logan v. Lasalle Bank Nat'l Ass'n, 80 A.3d 1014, 1019 (D.C. 2013) (quoting (Michael Patrick) Murray v. Motorola, Inc., 982. A.2d 764, 783 132 (D.C. 2009) (quoting Bell Ail. Corp. v. Twombly, 550 U.S. 544, 555 (2007) b. D.C. Anti-SLAPP StatuteThe District of Columbia's anti-SLAPP statute requires that the moving party establish 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, then the motion shall be granted unless the responding party demonstrates that the claim is likely to succeed on the merits, in which case the motion shall be denied.” D.C. Code § 16-5502. The statutes defines an “act in the furtherance of the right of advocacy on issues of public interest” as “any written or oral statement made: (i) in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, or (ji) In a place open to the public or a public forum in connection with an issue of public interest. D.C. Code § 16-5501(1)(A). Tl, ANALYSIS a, Count I (Defamation) “In order to state a claim of defamation, "plaintiff must allege and prove four elements. (1) that the defendant made a false and defamatory statement concerning the plaintiff; (2) that the defendant published the statement without privilege to a third party; (3) that the defendant's fault in publishing the statement amounted to at least negligence; and (4) either that the statement was actionable as a matter of law irrespective of special harm or that its publication caused the plaintiff special harm." Solers, Inc. v. Doe, 977 A.2d 941, 948 (D.C, 2009) (quoting Oparaugo v. Wats, 884 A.2d 63, 76 (D.C. 2005)). First and foremost, as to Plaintiff Ewing, the complaint fails to allege any statements made by any of the defendants concerning him in an individual capacity. Any statements that were made never mentioned Mr. Ewing in any capacity and only referred to Federal Title. While Mr. Ewing may be the CEO of Federal Title, he and Federal Title are not one and the same in away that the statements made in relation to Federal Title can be deemed as made to Mr. Ewing as well. Therefore, Plaintiff Ewing is dismissed for failure to state a claim Next, reading the statements in context, itis clear to the Court that the alleged defamatory statements cannot be deemed defamatory. A defamation claim survives a motion to dismiss only if “the communications of which the plaintiff complains were reasonably susceptible of a defamatory meaning.” Klayman v. Segal, 783 A.2d 607, 612 (D.C. 2001). The defamation claim. must be interpreted and evaluated “in the sense in which it would be understood by the readers to whom it was addressed.” Jd. at 613. “Context serves as a constant reminder that a statement in an article may not be isolated and then pronounced defamatory, or deemed capable of a defamatory meaning. Rather any single statement or statements must be examined within the context of the entire article.” /d. at 614. In the Complaint, the Plaintiffs focused on the following three statements that were included in the article: “Federal Title either caused our money to be stolen or stole it, and we need to get our money back,” said Michael Nadel, the couple's attorney. “We don’t have any evidence that it happened because of hackers other than Federal Title’s say-so.” Nadel also says Federal Title, which has offices in Friendship Heights and Logan Circle, failed to effectively communicate with Smith and Wrona ahead of the closing —a situation he attributes to the company being involved in the scheme. “Federal Title never called Sean Smith and said, ‘Bring your money to closing,” and didn’t even bring it up until the middle of closing, So if they weren’t responsible for helping steal the money, it certainly seems like they knew well in advance of that closing that the money was gone. Their conduct shows that,” he said Compl, $17. However, viewing the statements in context of the article, specifically the sentence immediately preceding these statements, itis clear that Mr. Smith, Ms. Wrona, and their attomey were simply pursuing alternative theories of liability, Specifically, the sentencing immediately preceding stated “Federal Title either conspired to defraud them of the $1.57 million or was sonegligent in its online security protocols that it all but allowed the money to be stolen by someone else.” Compl., Ex. A at 1. Mr. Nadel’s statements essentially restated the alternative theories of liability by stating “Federal Title either caused our money to be stolen or stole it.” Compl., § 17 (emphasis added), The statement was the speaker expressing his theory and subjective view of the case rather than claiming them to be objective facts, See Guilford Trans. Indus., Ine. v. Wilner, 760 A.2d 580, 97 (D.C, 2000) (*[I]f it is plain that a speaker is expressi a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable.” (quoting Haynes v. Alfred A. Knopf, Inc. 8 F.3d 1222, 1227 (7" Cir, 1993)), Similarly, stating “[s]o if they weren’t responsible for helping steal the money, certainly seems like they knew,” Compl., 17, is yet another example of speculative language that cannot form the basis for a defamation claim. Overall, Mr. Nadel’s statements, when read in context, were not reasonably capable of conveying a false and defamatory message. Last but not least, the alleged defamatory statements are protected by the fair-report privilege, which is recognized by the D.C. Courts. See Oparaugo v. Watts, 884 A.2d 63, 81 (D.C. 2005). This privilege extends to “defamatory matter concerning another in a report of any official proceeding or any meeting open to the public which deals with matters of public concern... if the report is (a) accurate and complete, or a fair abridgment of what has occurred, and (b) published for the purpose of informing the public as to a matter of public concern.” Id. (quoting Phillips v. Evening Star Newspaper Co., 424 A.2d 78, 88 (D.C. 1980)). Mr. Nadel’s statements provided a fair and accurate accounting of the issues in a pending judicial proceeding, which is a matter of public record and concem. Further, Mr. Nadel was simply echoing the allegations made in the federal case’s complaint made by Mr. Smith and Ms. Wrona, which is,also protected by a recognized privilege. See Oparaugo, 884 A.2d at 79 (“[District] has long recognized an absolute privilege for statements made preliminary to, or in the course of, a judicial proceeding, so long as the statements bear some relationships to the proceeding”) Therefore, Count I of defamation will be dismissed for failure to state a claim, b. Count Il (False Light) An invasion of privacy-false light claim requires a showing of (1) publicity; (2) about a false statement, representation, or imputation; (3) understood to be of and conceming the plaintiff, and (4) which places the plaintiff in a false light that would be highly offensive to a reasonable person. Klayman v. Segal, 783 A.2d 607, 613-14 (D.C. 2001). “Thus, before fin 1g that a statement is not actionable, because it snot reasonably capable of a defamatory meaning, the trial court must also satisfy itself that the statement does not arguably place the plaintiff in a highly offensive false light.” /d. As stated above, Mr. Ewing does not have a claim for defamation, therefore the false light claim fails, As to Federal Title, a corporation does not have a claim for false right for it does not have a right of privacy that can be invaded. See RESTATEMENT (SECOND) OF TorTS § 6521, emt. ¢ (“A corporation, partnership or unincorporated association has no personal right of privacy. It has therefore no cause of action for any of the four forms of invasion of privacy ....”). Therefore, the False Light claim is dismissed for failure to state a claim. c. Count III (Tortious Interference) “To make out a prima facie case of tortious interference with contract and/or prospective advantage, the plaintiff must demonstrate: (1) existence of a valid contractual or other business relationship; (2) the defendant's knowledge of the relationship; (3) intentional interference with that relationship by the defendant; and (4) resulting damages.” Havilah Real Prop. Servs. v. VLK,LLC, 108 A.3d 334, 345-46 (D.C. 2015). In the Complaint, the Plaintiff fails to allege the exact, business or contractual relationships that were supposedly damaged by the statements, It simply states that “Defendants have knowledge of these contractual and business relationships” and that they “intentionally and improperly interfered” with these relationships. Compl., {| 40-41. No specific factual allegations were provided in the complaint aside from these legal conclusions. Therefore, the Tortious Interference claim is dismissed for failure to state a claim 4d. D.C. Anti-SLAPP Act As stated by the Court of Appeals, the D.C. Anti-SLAPP Act was enacted “to protect a “particular value of high order’ — the right to free speech guaranteed by the First Amendment — by shielding defendants from meritless litigation that might chill advocacy on issues of public interest.” Competitive Enter. Inst. V. Mann, 150 A.3d 1213, 1231 (D.C, 2016). First, the moving party must demonstrate that the “underlying claim arises from an act in furtherance of the right of advocacy on issues of public interest.” Doe No. 1 v. Buirke, 91 A.3d 1031, 1040 (D.C. 2014), The statutes defines an “act in the furtherance of the right of advocacy on issues of public interest” as “any written or oral statement made: (i) in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; or (ii) Ina place open to the public or a public forum in connection with an issue of public interest. D.C. Code § 16-5501(1)(A). An “issue of public interest” is defnied broadly as “an issue related to health or safety; environmental, economic, or community well-being; the District government; a public figure, or a good, product or service in the market place.” D.C. Code § 16-5501(3). Once this prima facie showing is made, the burden then shifts onto the nonmoving party to demonstrate that the claim is likely to succeed on the merits, otherwise the special motion to dismiss shall be granted. D.C. Code § 16-5502(b)Here, the application of the Anti-SLAPP statute is clear. The action is clearly based on protected speech under the statute as it arises from the privileged statements made by Mr. Nadel toa WAMU reporter after the filing of the under! cluded as 1g federal lawsuit. The issue is one of public interest under the broad reading permitted by the statute, which relates to potential concems regarding cybercrime. According to the article, even Federal Title themselves admit, that this “incident should serve as a reminder to the public about the importance of eybererime awareness and education.” Compl., Ex. A at 3. As a result, the burden shifts onto the Plaintiffs to demonstrate that their claims are likely to succeed on the merits. As discussed above, itis evidence that the claims are unable to succeed on the merits, therefore, the Anti-SLAPP statute dictates the dismissal of the Plaintiff's Complaint. Accordingly, it is this 22 Day of October, 2018, hereby: ORDERED that Defendant Sean Smith and Erin Wrona’s Motion to Dismiss is GRANTED; itis further ORDERED that Defendant Sean Smith and Erin Wrona’s Special Motion to Dismiss is GRANTED; itis further ORDERED that Defendant Michael Nadel and McDermott Will & Emery’s Motion to Dismiss and Special Motion to Dismiss the Complaint is GRANTED; itis further ORDERED that the Initial Scheduling Conference scheduled for October 26, 2018 at 9:30 AM and all other future events in this case will be VACATED, and itis further ORDERED that this case is DISMI ED. SO ORDERED. William M, Jackson Associate Judge (Signed in Chambers)Copies to: Andrew J. Lawrence Counsel for Plaimiff Bryan A. Carey Counsel for Defendants Sean Smith and Erin Wrona Roger E, Warin Michael E. Stoll Counsel for Defendants Michael Nadal and McDermott Will & Emery 10SUPERIOR COURT OF THE DISTRICT OF COLUMBIA Division : x ZURIBERRY, Plaintift Case No, 2020 CA 004366 B . Hon. Fern Flanagan Saddler CURRENT PUBLICATION, et.al. Defendants - x [PROPOSED] ORDER Upon consideration of Defendants’ Special Motion to Dismiss Pursuant to the D.C. Anti- SLAPP Act, and Plaintiff’s opposition thereto, itis this __day of »20__, by the Superior Court of the District of Columbia, hereby ORDERED that Defendants’ Motion be and is hereby GRANTED, and it is further ORDERED, that the claims against Defendants are hereby DISMISSED WITH PREJUDICE; and itis further ORDERED, that Plaintiffis liable to Defendants for their litigation costs, including reasonable attorney’s fees incurred in their defense of this matter, in an amount to be determined after briefing by the parties Judge Fem Flanagan Saddler Deliver to: David A. Branch (counsel for Plaintiff) Charles D. Tobin, Alia L. Smith (counsel for Defendants)SUPERIOR COURT OF THE DISTRICT OF COLUMBIA ‘ivil Division ZURIBERRY, Case No, 2020 CA 004366 B Plaintitt . Hon. Fern Flanagan Saddler CURRENT PUBLICATION, et. al. Defendants [PROPOSED] ORDER Upon consideration of Defendants’ Motion to Dismiss Pursuant to Superior Court Rule F's opposition thereto, itis this __day of ,20_, by the 12(b)(6), and Plainti Superior Court of the District of Columbia, hereby ORDERED that Defendants’ Motion be and is hereby GRANTED; and it is further ORDERED, that the claims against Defendants are hereby DISMISSED WITH PREJUDICE. Judge Fem Flanagan Saddler Deliver to: David A. Branch (counsel for Plaintiff) Charles D. Tobin, Alia L. Smith (counsel for Defendants)IN THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CIVIL DIVISION oo x ZURIBERRY, Plaintiff Case No. 2020 CA 004366 B CURRENT PUBLICATION, e¢. al. Hon. Fern Flanagan Saddler Defendants i x DECLARATION OF ALANA WISE I, Alana Wise, declare under penalty of perjury as follows: 1, Lam above the age of 18, believe in the obligation to tell the truth under oath, and I base this declaration on my personal knowledge of the facts set forth herein, Background 1. Lam a politics reporter at NPR, a position I started in March of 2020. Before that — from September 2018 until March 2020 — I was the Guns & America Fellow and a reporter at WAMU, Guns & America is a reporting collaboration between 10 public radio stations across the country, and my role was to report on gun issues as they affected the DC metro area. My biggest project during my time with the collaboration was a multimedia series called *s which won second place in its category in the highly prestigious Public Media Journalists Association (formerly PRNDI) awards. The project was also recognized by Tie Trace as among The Most Memorable Gun Violence Journalism of 2019 2. Priorto starting at WAMU, I was a reporter for Reuters for three years, covering politics and airlines. It was a fast-paced environment which I enjoyed, But I left ~ and eventook a pay cut ~ to join Guns & America because I strongly believed in the project and thought it could make a real difference 3. I graduated from Howard University in 2015 with a Bachelor's degree in Political Science and a minor in Journalism. My Experience at WAMU 4, Asthe Guns & America Fellow, I was to devote 80% of my time to Guns & America and 20% of my time to general reporting assignments for WAMU. For my Guns & America work (80%), I had two editors, A.C. Valdez and Jeremy Bernfeld. For my general assignment work (20%), I was assigned Zuri Berry as my editor. I began having problems with Mr. Berry almost from the start. 5 Mr. Berry inserted himself into my Guns & America work by, for example, frequently disparaging my work on it, and by inviting himself to meetings with my Guns & America editor. He was also not respectful of the way my time was supposed to be split. He would frequently insist that I spend far more than 20% of my time working on other assignments 6. During the Guns & America meetings that I would have with Mr. Valdez, Mr. Berry repeatedly said demeaning things to me about the quality and quantity of my work. Teame from a hard news environment at Reuters where I covered breaking news events ~ from mass shootings to upheaval in the airline industry. I understand that sometimes in newsrooms, tempers can be short, people can be impatient, and voices can be raised. I understand that constructive criticism is not always delivered with tact. I can handle that, But the way Mr, Berry behaved was different. His belittling of me and my work was constant, and his criticism was not constructive, but rather just insulting and openly disrespectful7. Imaddition to complaining generally about the quantity and quality of my work, he would also make digs about small unimportant things. 8, And the problem was not only with the substance of what he said, It was also his tone —it was extremely condescending and dismissive, He would speak to me in exasperated tones as if I were a child instead of a professional journalist. 9, recall one occasion in particular in a meeting with Mr, Berry and Mr. Valdez where Mr. Berry, in a very snide and dismissive tone, claimed that my work on the Guns & America series Shattered had not been up to par. Mr. Valdez later told me that he did not appreciate Mr. Berry's behavior toward me ~ specifically he said that the behavior “didn’t sit 1” with him, 10, In another instance of working on the project Shattered, as publication time approached for the first installment, Mr. Berry wanted to be in on the listening session, where we would gather to review different elements of audio that I had gathered and created, But he insisted that the session occur earlier than we had previously planned. Because of this, I was only able to present rough cuts of the audio, not final cuts ready for air. I explained this to him and to A.C. Valdez, who was also at the listening session, Nevertheless, Mr. Berry again took the opportunity to demean me in front of Mr. Valdez, castigating me based on his perception that the quality of my radio work was poor. He insinuated that I do not care about my work and that I would be willing to present shoddy material to the public 11, Inaddition to the disrespect Mr. Berry showed me in front of my Guns & America editors, his criticisms would often occur in front of WAMU’s interns, with whom I shared an office.12. Mr. Berry's repeated criticism of the quantity of my output at one point prompted me to go through the computer system and print off all of my bylines, Iwas among the top three producers of content, Nevertheless, the disparagement continued 13, Another time, Mr. Berry treated me disrespectfully in connection with my bereavement leave over the unexpected death of my aunt, who raised me after my mother passed away when I was a teenager. informed Mr. Berry on Saturday, the day she died, that I was taking leave and would be travelling to Atlanta (not to North Carolina, as he alleges in his Complaint). On Thursday, he called to offer me condolences, but then expressed annoyance when I told him that I had not yet departed and was still making travel arrangements. (It was not a full week as Mr. Berry alleges in his complaint.) 14, ended up taking two weeks of leave, and, immediately upon my return, Mr. Berry called me into his office and berated me, saying that the way I took leave was unacceptable, I was stunned and upset, and I got up and left the room. 15, He once yelled at me in the newsroom in front of others. In August of 2019, there were reports of a possible shooting at USA Today Headquarters in Virginia, and Mr. Berry had sent mea Slack message about it, but I had not yet seen it, Apparently upset that I did not immediately respond, he came to my desk and yelled, “get there now!” Having not seen the Slack message yet (and because we had previously been Slacking about something else, not urgent), I was confused about what he meant, He then, again, yelled, “USA Today, get there now!” (It tumed out that there was not an active shooter at USA Today.) I thought this behar was unprofessional, and it made me feel demeaned and embarrassed in from of my colleagues. A true and correct copy of the text of an email I sent to my editor about this (which I stored onthe Notes Application on my phone) is attached hereto as Exhibit 1. It also references Mr. Berry’s behavior in connection with my bereavement leave. 16, In general, Mr. Berry made me feel wholly unwelcome in the newsroom, He offered no guidance, advice, mentorship or help to me as a young reporter new to the world of audio, Between his active disparagement of me and my work and his passive failure to foster my development in any way, the workplace became unbearable. Mr, Berry’s disrespectful behavior toward me was so pervasive that it is difficult for me now, a year later, to pinpoint many specific instances of misconduct. Ijust remember the constant condescending tone, the repeated disapproval and unwarranted and overly harsh (and unhelpful) criticism. I remember feeling ill at the prospect of having to deal with him every day. 17. On multiple occasions I reported my concerns about Mr. Berry's mistreatment of me to Human Resources and others. I explained that I was at the end of my rope with respect to the incivility. I requested to change editors, but the request was denied, When Mr. Berry would Jeam of my complaints, he would give me the cold shoulder for several days. While this was preferable to constant criticism, it was stll disrespectful and unproductive. Ultimately, I felt I had no choice but to leave WAMU before the end of my fellowship. I quit in March 2020, solely because of Zuri Berry. 18. [know that Iam not the only one who had problems with Mr. Berry. I observed him also treating Letese’ Clark very badly — hovering over her desk and micromanaging her. Indeed the situation in the newsroom was bad enough that at one point the news director, Jeffrey Katz held a meeting with just reporters — no editors other than him. A key theme of the meeting was that professionalism in the newsroom had taken a dive, and the consensus was that this was because of Mr. Berry.After My Departure 19, In late June of 2020, several months after I had left, I sent emails to management at WAMU concerning my tenure there. A true and correct copy of the message I sent to Jeffrey Katz, A.C. Valdez, and Jeremy Bernfeld, is attached hereto as Exhibit 2, and a true and correct copy of the message I sent to Seth Grossman, the American University administrator who oversees WAMU, is attached hereto as Exhibit 3 20. In my message to my former editors (Mr. Katz, Mr. Valdez and Mr. Bernfeld) did not specifically identify Zuri Berry, but that is to whom I was referring, And Ihave no doubt that they understood that. He was the main perpetrator of the “culture of bullying and hostility at WAMU.” He was the one who “berated” me, “belittled” my work, and “questioned my credentials.” He was the one “responsible in full for my early departure from Guns & America.” He was the one who created, for me, a “toxic” environment and “venomous culture.” 21, My message to Mr. Grossman echoed the same themes. I explained to him that I hhad been “on the receiving end of bullying and harassment unlike any I had ever experienced in my entire career as a journalist” and that the “abuse” was “doled out... by Zuri Berry,” I explained that “my award-winning work and my skills were constantly undermined by Zui.” And I explained that it was “purely because of the brazen, unchecked harassment that I resigned from what should have been a two-year fellowship.” 22, To this day, I continue to believe in the truth of everything that I wrote in those messages. Dated: December 22, 2020 s Alana Wise Alana WiseEXHIBIT 1 (Wise Declaration) AV ST& Se iR PVeOgeeRP& B MY dRMOUVZT agf dRTMédPe fa MZ VZ{RdMOfVaZ B UMP iVfU LgdV 6Rddk fU ISeT) 18 .,-3%) Sf -.40, bY& M dRbadfRd SXMTTRP VZ {UR GXMOW nfUR(ZRiedaaYo OUMZZRX M fiRRF SdaY M KIC dRbadfRd VZPVOMFVZT M bafRZfVMX MOfVhR eUaafRd eVfeMfVaZ Mf IGS HaPMk) Sf --400 bY& Lg dRebaZPRP fa MZ gZdRXMRP PVdROf GXMOW YReeMTR B UMP eRZf RMAXVRd VZ fUR PMk) 5e B {UR fMeW LgdV MZP B UMP PVeOgeeRP VZ agd PVAROf YReeMTR& UR OaYRe VZfa Yk aSSVOR MZ HaPMk eUaafVZT& XRfme Ta)o B (RXX UVY fUMF B iMe Zaf kRf MiMQR aS fUR eVfgMfVaZ) AR eMke M eUaafVZT Mf IGS HaPMk& XRfime Ta)o GfVXX OaZSgeRP& B fadZ fa Yk OaYbgfRd fa OUROW GXN Rd fa fdk fa SVTgdR agf iUMF URme dRSRdRZOVZT) Se BmY PaVZT fUVe& B VZPVOMER fa Lad XaaWVZT VZfa Vf) AR FURZ hRdk OgdfXk eMke nGUaafVZT Mf IGS HaPMk URMPcgMdfRde VZ DOCK fURGR) EFK&o Me UR daXXRP UVe RkRe VZ eRRYVZT RiMebRdMfVazZ MZP iMXWRP MiMk& XRMI OazZSgeRP) 6k -.402 bY& B iMe VZ MZ INRd URMPVZT fa IVdTVZVM) CRee fUMZ -, YVZgfRe UMP bMeeRP eVZ( VZVIVMX fiRRfiMe SXMTTRP fa {UR {VYR B UMP YaNVXVIRP fa Ta dRbadf) B SagZP LgdVime faZR fa NR RjfURYRXk PVedRebROISgX MZP gZbdaSReeVaZMX& RhRZ VZ fUR (Ud: NdRMWVZT ZRie eVfgMfVazZ,) B gZPRdefMZP Uai UROfVO PRMXVZT iVfU NVT& NdRMWVZT efad\ PaZR Vf Sad KRMde VZ M UVTU(efdRee& UVTU(dVeW RZhVdaZYRZfp UaiRhRd& B iaddk FUMF Uai cg eVEgMfVaZ REOMXMIRP fa {UR baVZf aS PVedRebROfVZT M OaXXRMTgR Ve VZPVOMEVAR aS M N PRMXVZT iVfU dRbadfRde) HUVe Ve Zaf fUR SVdef fVYR B UMhR UMP MZ VZ{RdMOfVazZ iVfU LedV FUME B SRRX OdaeeRP M | Yk NRARMhRYRZf XRMhR MSERd {UR bMeeVZT aS Yk MgZf VZ SbdVX& LgdV OMXXRP YR VZfa U YMPR M dRYMdW MNagf Uai YgOU fVYR B UMP fMWRZ MiMk) HUVe iMe MSfRd UR VZiRddgbfRP iVfU M bdaNVZT bUaZR OMXX dRTMdPVZT Yk iURdRMNagfe) !KURZ B dRebaZPRP fa UVe cgRefVai iURGR B iMe fUMf B iMe ef VXX VZ 87& UR eMVP nB fUagTUf kag iagXP UMhR NRRZ VZ MfXMZ{M 1 BZMbbdabdVMIR MZP iRXX agfeVPR fUR NagZPe aS iUMf OMZ dRMeaZMNXk NR OaZeVPRARP TRA RPVfad(dRbadfRd dRXMfVaZeUVb% Dk aZXk TaMX YahVZT SadiMdP Ve fUMf iR OMZ dRMOU M bXMOR iURAR bMdfVRe MdR dRebROKS MZafURd MZP OMZ iadW faTRfURd VZ M OaXXRTVMX YMZZR4) HUMZW kag Sad ki fVYR& 57) SXMZMEXHIBIT 1 (Wise Declaration) From:Alana Wise wisely Sent: Monday, June 29, 2020 5:00 PM To: Jeremy Bemfeld “cre AC Valdez a m.ong> Jeffrey Katz fate: Subject: Accountability at WAMU EXTERNAL EMAIL: Use caution with links and attachments. Jeffrey, Jeremy, AC, At this critical moment of newsroom transparency and long-overdue accountability to journalists of color, I would be remiss if I did not reach out and express how disappointed I was during my time at the station with leadership’ inability and/or unwillingness to address the culture of bullying and hostility at WAMU. As has been well documented, both in private conversations with my editors and in conversations with HR, I was continuously berated, my work belittled, and my credentials questioned by management, in ways that were not only unproductive, but ultimately untrue. It was these issues, raised time and again to higher ups, that were responsible in full for my early departure from Guns & America. And based on my conversations with other women of color, particularly Black women, past and present at WAMU, this experience of bullying and a lack of leadership is responsible for the departures and dissatisfaction of so many other talented journalists. I write this in the hopes that my experiences will encourage newsroom-wide improvements for others. The competency shortfalls and lack of accountability that have been enabled and allowed to fester at the station are as toxic as any other environment I’ve ever seen, and it is management's moral and professional duty to address these issues head on. I can say personally that because of the repeated shortcomings in addressing the venomous culture created and maintained by management, I have actively discouraged a number of talented journalists from seeking employment at WAMU, for fear they might encounter the same destructiveness that defined my time there. For all the public-facing handwringing and virtue signaling from the company, itis ultimately fruitless and frankly dishonest if it is not matched by an earnest, material effort to improve the newsroom’ culture. This includes excising the bad actors who have been responsible for fostering the current environment of incivility at WAMU, As much as I want to rest assured that this letter will do some small part in dismantling the structure of hostility that, based on my time there, seemed almost foundational to the values of WAMU, given how loudly I sounded the bells during my time as an employee, I am left with the unfortunate expectation that this will be yet another forgotten missive amid the company’s continued dismissal of and dereliction of duty to its Black employees. I would love nothing more than to be proven wrong Regards, Alana L. Wise P.S,: Jeremy, a sincere thank you for your congratulatory message on Shattered’s recognition in its PMJA category. That series was truly a labor of love, and one accomplished in spite of the last-minute roadblocks 1R.T/-bL:a SQM J LB) :LTE, TMV GW:, Sib He:.,PP:/ T PRGT,L/ RM-/ FMA&TS sUTC:LTPRE/ /:PTCR 00 CeSeS:FbjT 3S :@G0295; ABUKVKCPWMJTXXIHIT E (cist atsirtion) From: GfThT Sekb BfThiPnekbFeeTet WiC Subject: MiTleih TWWimhI KUEFSGIR EXTERNAL EMAIL: wse caution with links and attachmentsc Hello Seth, As a recent former employee of WAMU, | would be remiss if | did not reach out during this pivotal moment of newsroom transparency to express my continued disappointment in the station's repeated failures to address the flagrant and rampant culture of abuse and bullying of female journalists of color at the hands of newsroom management. As the former Guns & America fellow stationed at WAMU, I bore witness to and was on the receiving end of bullying and harassment unlike any | had ever experienced in my entire career as a journalist. The abuse, doled out most brashly by Zuri Berry, was enabled at all levels of management, and those of us who filed complaints were repeatedly left out to dry by leadership, including the station’s HR, as both the mistreatment and, indeed, the boldness of it worsened. My award-winning work and my skills were constantly undermined by Zuri, and my ability to do my job was compromised by @ newsroom culture that lacked both competency and communication. It is purely because of the brazen, unchecked harassment that | resigned from what should have been a two-year fellowship. And as much as the narrative of people seeking ‘better opportunities” persists, | want to be clear: | and so many others left because any opportunity would have been a better opportunity. Any chance for escape was a welcomed life raft amid the sea of disrespect and incivility we were forced to endure day in and day out ‘As much as more recent newsroom suffering can be attributed to Zuri, it would be categorically false to imply that he is the only bad actor operating in that space, or that the station's culture of rot and mistreatment starts and stops with his tenure. Station management, from JJ Yore, about whom the horror stories are as varied as they are unsettling, Jeffrey Katz, through whom countless reports of editor mistreatment were filtered and 1jbiYcJiSbn RYhcYhhSR& JAR :SdSkYSKS .geiSJj& IWS WicJd gShejgMSh gSf IWe TJYbSR he cJdn eT jh) KgYdUYdU JkKjhSgh ie iJha& ISgS Jbb cJRS JiJgS eT IWS MediYdjSR cYhcJdJUScSdi eT iWS dSIhgeec. JR Wel jdhJTS JAR jdhiffegiSR cJdn eT iWS ZejgdJbYhih TSbi Jh J gShjbi eT IWS hnhiScYM MijbijgS eT JKihS, AlIgYiS iWYh bSiiSg IYIW bYiibS SmfSMiJi¥ed Teg MWJGUS& KJNSR edaigSkifeii\8SGagih ie JbSgi ISURSHWY ie VB hidiEdéhf @KESC h JARIVEY) HE JiS BT hbie JM8Kj iWSgS hiYbb gScJ¥dh J UbYccSg eTVéf SiWi f SAF hhec SIVWUNId hiYbKS RedS ie VISIR eiWSg ZejgdJbYhih Tgec hiTTSgYdU iWgejUW J SdkYgedeSdi iWJi JMMSfih& YT dei iWgYkSh ed& J bJMa eT JMMejdiJKYbYin JAR J MibijgS eT JKjhS, GJdn iWdah Egnej git S8JdR ARe HYIIVEdSin Vf S iWWi iH ISiiSgI Yodei TYdRihSBAWShJcS JhW WSJf Jh he cJdn eiWSg foSJh Teg MWJdUS, HSUJgRh& -bJdJ B, | YhS FeTjT:Semb &BCF, AGG-/B HISMTMJRUPLIN THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA. CIVIL DIVISION = x ZURIBERRY, Plaintiff Case No. 2020 CA 004366 B CURRENT PUBLICATION, ef. al. Hon, Fer Flanagan Saddler Defendants - Xx DECLARATION OF LETESE’ CLARK 1, Letese’ Clark, declare under penalty of perjury as follows 1 Lam above the \ge of 18, [believe in the obligation to tell the truth under oath, and I base this declaration on my personal knowledge of the facts set forth herein. My Background 2. Thold a Bachelor of Arts in journalism from Howard University (from which I graduated in 2013) and an M.B.A. from American University (from which I graduated in 2018) 3. From January 2019 until February 2020, I was a news producer/editor at WAMU. In this role, my responsibilities were to manage, edit and produce content for the daily newscasts and digital content for the station. My supervisor for the entire time I worked at WAMU was Zuri Berry. 4. Before my job at WAMU, I held several positions as a journalist in the Washington D.C. area, including as an editor for WTOP News (for three years) and an editor at CBS Radio (also for three years). 5. Since leaving, I have been the Associate Operations Manager at Manifest, a marketing and advertising companyMr. Berry’s Treatment of Me 6. A few months into my tenure at WAMU, Zuri Berry became a very difficult and unpleasant supervisor, For example, he always demanded to know my whereabouts at all times during the workday, He would also frequently ask my colleagues where I was, even though they would have no reason to know. I felt that with this constant surveillance he was treating me like an infant. 7. Inaddition, he would constantly micromanage me by incessantly asking me minute details that were within my supervisory duties, such as precisely when specific stories ‘were running, if someone else had already completed and sent to me their edits, and the status of, various stories and ideas, etc. I gave Mr. Barry no reason to doubt my competence, yet he treated me as if he did not trust me to do my job and accomplish my responsibilities. 8. One of my responsibilities was to write copy for news stories that the hosts of WAMU’s broadcasts would read on air, I would often work directly with each host on this, Sometimes, Mr. Berry would go into the computer system, after we completed an edit, and change the copy that the host and I had agreed on without telling anyone. ‘This would result in the host being surprised on air and occasionally stumbling. That made me look unprofessional to my colleagues. 9. When I was physically present at my desk, Mr. Berry would often hover over me for long periods of time, in a way that I found menacing. Moreover, it was exceedingly difficult to accomplish my work with him always in my small space. I found this practice very disturbing and unjustified. I felt like I could not escape him, 10. Despite my academic credentials and background in journalism, Mr. Berry consistently said and did things that left me feeling that I was inadequate and unqualified. Forexample, every day there was a 2:00 p.m, meeting to go over the content for the day, the next morning and additional story ideas. In addition to Mr. Berry and myself, this meeting was usually attended by other editors, an editor from DCist, a producer from the Kojo Nnamdi Show and reporters who had updates they wanted to share, At these meetings, Mr. Berry routinely ignored, dismissed, and belittled my suggestions and input regarding story ideas and how to repurpose content. He did so in a tone of voice that I found to be incredibly condescending. 11, Additionally, he would consistently send reporters and interns to me, often prior to my arrival, to work with on assignments or to edit their work without informing or providing me with any background on their assignments, This often led to delays for the reporters and interns and made it difficult for all of us to effectively do our jobs. 12, There are many instances in which Mr. Berry spoke to me or otherwise treated me in ways that were rude and disrespectful. One particular instance I can recall was when a reporter asked me to edit a story that they had recorded. I replied that I could edit the written copy but could not listen to the audio because there was an issue with my computer speakers, and was unsure of when it would be resolved. I suggested that she ask Mr. Berry or another editor to edit the audio portion. Upon hearing this, Mr. Berry yelled at me in front of the whole newsroom something to the effect of, “What's wrong with your computer? If you’re incapable of doing your job, then you should say you're incapable!” I was flabbergasted. Asking for this type of editing assistance should not have been a big deal - it happened all the time. 13. Mr. Berry’s mistreatment, and undermining of me in front of others, was pervasive and persistent, It felt like a nonstop barrage of rude and dismissive behavior. Indeed, Mr. Berry’s mistreatment was so apparent that other staff members even asked me about it. Several colleagues who sat near me and interacted with others near my desk expressed concemsto me about Me. Berry's constant hovering « ver my desk and his condescending tone whenever I isagreed with his story suggestions 14, I naised my concems about Mr, Berry with the news ditestor in June 2019. The news director told me that he would have a conversation with Mr. Bory and advised me to ny and work it out 15. A month later, I Rad my 2019 perfirmance review. In it Mr. Berry indicated that Iwas not “meeting expectations,” | was upset and frustrated with this review, which f believed ‘was undeserved retaliation for my earlier complaints about Mr. Berry's mistreament of me. 1 iseuased this with the news director and the human resources lepartaent, Thi discussion resulted in elevating oue of my scores on the performance review, but otherwise Me. Berry's mistreatment of me ~ his dismissiveneas, his atleramanaaging, his hovering, bis condescension, Ais unjustified derision ~ continued. 16. Bocmise af Mr. Berry’s behavior toward me, among other things, { began fo look for # new job, As soon as I found one, ¥ took it because Tne longer could tolerate the work environment st WAMU that Mr. Berry and others had orested, 17. Tnimy exit Interview, [informed AU Human Resources staff that Mr. Berry was 8 major factor ia my departure. After my departure, {also sent an email to Human Resources, furthor informing thom about the toxic environment created by Mr. Berry. 1 understand that this cemiail is ewhat ferme the basis of my “complaint” against him. A unc and correct copy of f ‘email is attached hereto as Exhibit 1 ated: December 22.. 2020EXHIBIT 1 (Clark Declaration) From:Letese' Clark

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