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Case number 25-7208, Ed Al.

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Renat Akhmetshin, appellant versus William Browder.

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Mr. Erdalak for the appellant, Mr. Nathan for the appellant.

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Good morning, counsel.

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I don't see you yet, but Mr. Erdalak, whenever you're ready, please proceed.

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Good morning, your honors, and may it please the court.

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Wesley Erdalak on behalf of the appellant Renat Akhmetshin.

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I'd like to reserve two minutes for rebuttal.

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It is undisputed that Bill Browder went on a nationally televised news program and claimed that Mr. Ack mentioned was, quote, a spurn, a current spy operator in Washington.

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The question presented by this appeal is whether or not, having made this false claim in numerous media outlets, Mr. Browder should reasonably expect to be hailed into court in Washington to answer for the truth of those statements and the injury that they caused to my client.

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Whether this court applies the more flexible Fifth Amendment standard recently announced by the Supreme Court in Fold versus PLO, or the more familiar 20th Amendment minimum contact standard, the answer to that question under this court's precedence is yes.

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Under the Fifth Amendment, exercising personal jurisdiction over Mr. Browder is reasonable given his substantial ties to the district and the modest burdens that litigating in the district places on that well-resourced individuals such as Mr. Browder, who has visited the district countless times voluntarily.

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Can we start with the standard, what the standard is before we dive into whether or not it applies here?

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So this is, the DC courts are set up pursuant to Congress's power over the district, which

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In one sense is broader than it's on other unenumerated powers.

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They basically have a police power over the district, which is why they're setting up local courts to do the general law of torts.

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But in another sense, it's more limited.

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The cases talk about power over the 10 square miles.

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they analogize Congress when acting pursuant to Article 1, Section 8, Clause 17 as if it were a state legislature for the district.

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So given all of that, why wouldn't we apply full on minimum contacts, which is the test the Supreme Court has said governs for territorially bound states?

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Yes, Your Honor.

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I think the reason is that, as the Supreme Court said in Fold, it really derives from the fact that there is a categorical difference between federal power and state power.

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And for that reason,

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when the federal, you know, it's a federal government that is acting when it makes laws for the district.

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And as the court said in fold, there really aren't any, or at least it didn't reach the question whether there are any inherent limits on the power of the federal government to exert extra territorial power.

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Yeah, that's true as a general matter.

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And when Congress is enacting national legislation under the commerce clause or

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exercising foreign affairs powers as in, did we lose Judge Pan?

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Sorry about that.

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No problem.

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It's an issue.

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Exercise, a fold is an exercise of the foreign affairs power, but this is again, this is just Congress acting as a state legislature managing local tort law.

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Just seems very different.

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Again, I understand certainly that the strength of the interests of Congress in making law for the district are certainly different.

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For example, the foreign affairs powers that were involved in the PSJA VTA in the full case.

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So I would certainly acknowledge that the strength of the government interests

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are lesser in this case.

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And I think that would change the analysis.

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But I do believe still, if the court did say one thing, it said that there's a catacole difference between Congress and the states.

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It matters in terms of determining what sort of constraints exist on the exercise of personal jurisdiction.

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I mean, I think there might be

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downstream a question of whether, you know, exerting jurisdiction to the full extent allowed by the Fifth Amendment, you know, comports with the necessary and proper clause.

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I think that's a more difficult question, but I don't think you need to reach that here because I think it is clear that there is a more

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a more relaxed standard that applies under the Fifth Amendment.

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And I haven't seen the, I don't believe Mr. Nathan contests that only the Fifth Amendment applies within the District of Columbia.

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So it seems to me that we have precedent directly on point that applies the sort of 14th Amendment minimum context.

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minimum contacts test in the Fifth Amendment context here in the District of Columbia.

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We held that in an in-race sealed case.

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And the DCCA has also analyzed this directly on point, saying that the minimum contacts type analysis applies under the Fifth Amendment, even though it originated under the Fourteenth Amendment.

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And so it seems that what we look at fold

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It would only be if fold eviscerated or overturned those direct precedents that we would take this path that you're suggesting and folders in such a different context.

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It's about a statutory grant of jurisdiction.

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So there's a difference between federal rule of civil procedure.

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4K1A which is what we have been applying those who are subject to the jurisdiction of a court of general jurisdiction in the state where the district is located versus 4K1C which says when authorized by federal statute.

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So we're looking at two different

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aspects of applying personal jurisdiction.

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And then, as you said, we're talking about, you know, a statutory grant in a foreign affairs area.

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So different.

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How is it that Fold would eviscerate the on-point precedent that says we should apply minimum contacts?

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Well, Your Honor, I think the reason that it would, I think, eviscerate those precedents is I believe that those precedents were decided under the assumption that the standards under the Fifth Amendment and the Fourteenth Amendment were the same.

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And so I do think the development of a new Supreme Court precedent, which says that these standards are in fact materially different, does change that.

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And I certainly understand that it's under a different rule.

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Well, they held that they were the same in this context.

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They didn't assume that they're always the same.

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and the question is why a precedent in a different context would change the analysis under this context.

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only for the reason that they have said that the Fifth Amendment.

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I don't think when these other cases were considered, there was a signal from the Supreme Court that the difference in the standards was materially different.

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But I should say, if the court doesn't want to reach the full question, doesn't want to reach the question of whether or not the Fifth Amendment governs here, we are entirely comfortable saying that we think that the allegations in the complaint and the materials submitted to the district court give a very good case that minimum contacts do apply here.

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Among other things, the fact that in the statement itself that we're alleging is defamatory, says that Mr. Akhmetian is a spy in the district.

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I think the other side says that the only real, as the court below found, I don't think the other side disputes if that claim is somehow intentionally directed towards the district, then jurisdiction is proper here.

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I thought we'd get too far into that question, which I am also eager to discuss.

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At least one more question on the full Fifth Amendment versus 14th Amendment question.

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Which of Congress's enumerated powers do you think it was exercising when it passed the long arm statute?

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Do you think it was exercising its enclave clause powers to make rules for the district?

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Yes, I think it's the enclave powers to make rules for the district.

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OK.

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And then we have precedent that says when Congress does that, it acts in the like manner of the legislature of a state.

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So how does that not kind of doom your argument that we need to apply a broader test than the test that applies to state courts?

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I think, again, the only reason I would say that it's different is that, as the Supreme Court explained in full, there's a categorical difference between state and federal power.

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So even if the federal government is acting in a like manner as a state, it still has the inherent power to exercise jurisdiction exterritorially, which is greater than that, which is granted to the state legislatures.

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So you would you would agree that bold didn't discuss territorial courts or, you know, DC local courts?

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No, Your Honor.

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I'm happy for you to move into the argument you were heading towards unless my colleagues have more questions on this.

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Again, the standard is whether or not Mr. Browder expressly targeted the district.

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If the statement that our client is a spy in the district isn't enough to explicitly direct your conduct towards the district, it's very difficult to think of something that does qualify.

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But even beyond that, even if we if the court were not to find that the statements themselves set aside minimum contacts, this is a individual with substantial ties to the district.

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Many, many visits to the district for media appearances to promote his book to lobby government.

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And I would specifically just want to draw attention to one specific incident, because I think it's highly probative here and related to the case, which is that

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In June of 2016, my client arranged for the screening of a documentary at the museum in Washington, D.C.

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Mr. Browder subsequently went to several D.C.-based media outlets.

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This is at pages 136 and 218 of the appendix and stated that that screening was done at the behest of Russian intelligence.

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So again, numerous contexts generally oriented towards burnishing Mr. Browder's reputation as an expert on U.S.-Russia relations.

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Specific contacts with the district that are involved in fighting with my client and claiming that he is a Russian asset that I think... Are you currently arguing the Calder effects test or the traditional personal jurisdiction test?

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I'm trying to understand which argument you're making right now.

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Well, I think there is a Calder effects test, which I think is, which we believe is satisfied here.

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And then addition other contacts with the district, which I think are more in the species of personal available, which would also support the defamation has to arise out of or relate to the contacts.

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How does that fit.

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I would say it relates to the contacts in the sense that the prior contacts that we're pointing to are generally related to Mr. Browder cultivating a career and a reputation as an expert on US-Russia relations, which is the capacity.

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But isn't the test that he has to reasonably anticipate being held into court for the defamatory statements?

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And these statements were made outside of the district about a meeting in New York.

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And so the defamation has to relate to the contacts, and I don't see how it does.

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Well, as they say, and as I believe Justice Kagan said in the Ford Motor Company, it's a rise out of or relate to.

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I think relate to is meant to encompass a more broad, non-causal relationship between the conflict.

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I believe the language is that there's some sort of affiliation between the form and the underlying controversy.

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And I believe that the underlying- What's your best argument that these particular statements arise out of or relate to the context in the district?

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I would arise out of or relate to.

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Yes, because you've just talked about what the contacts are, but I haven't seen the connection yet between the statements and the contacts.

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Well, they're connected in the sense that it was in its capacity as an expert on U.S.-Russia relations that Mr. Browder made the statements.

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It was the reason why he was

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brought on national television to make the statements and it's particularly the reason why the statements about my expert is not connected to the district.

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Is it?

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I mean, he's had some contacts with the district in connection with that, but I'm still not seeing the connection between the specific statements that you will ledger defamatory and the contacts with the district.

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Well, I believe the connection or the way I would explain the connection is that through spending a lot of time in the district, lobbying Congress, making media appearances, he created a status for himself as an expert on US-Russia relations.

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Were it not for that status, he wouldn't have been someone who appeared on national television to make statements about my client.

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The statements wouldn't have had the degree of damage on my client's reputation, if not for those.

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So is it your position then that any any comments he makes as an expert on Russian relations, no matter where he makes them and about where he there would be personal jurisdiction in the district?

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I don't think I would go that far, but I believe that I don't see how that's different from what you're saying in this particular case, because these statements were not made in the district.

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They weren't made about events in the district.

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So it just seems to me you're saying because he has context in the district related to his expertise, if he uses that expertise to make comments, there's personal jurisdiction in the in the district.

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Your honor, I just want to say two things in response.

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I realize I'm getting close to the end of my time.

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First, I would say it is true that the comments were not made in the district, but the cases have never suggested that that question is dispositive.

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In Calder and also in itself, those statements were made outside the district.

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They were made from Florida about events that took place in California.

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And then second, I believe, your honor, I don't mean to misquote you, that you said these are not about

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events that took place in the district.

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It was a meeting at Trump Tower in New York, was it not?

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Yes, Your Honor, but I want to make it clear we are not claiming that the statements about the Trump Tower meeting are defamatory.

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My client admits he was at the Trump Tower meeting.

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We've never at any point suggested that those claims are false.

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What we claim is that this statement that he made those statements in his capacity as a Russian intelligence asset

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And that claim that my client was a Russian intelligence asset is not something that was limited to one particular incident in New York.

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And in fact, on the face of that, he said that in in Great Britain, would there be personal jurisdiction here in D.C.?

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We just said that generally in Great Britain.

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If he made the same challenge statements from, yes, your honor, because I believe they were explicitly.

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And if you made them in Russia, if you made them anywhere in the world, there would be personal jurisdiction in DC.

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Does him saying that your client is a Russian asset gives DC courts personal jurisdiction over him, no matter where he says them?

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I believe that the place from what they have said, I mean, it certainly would have some weight if they were made in the district.

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But I think the general fact that they're made from outside the district is not just positive.

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It's a factor.

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And again, the statement was not just that he was a Russian spy, but literally on the face of the statement, a Russian spy in the district.

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So that combined with his many other district contacts, I think supports jurisdiction in this case.

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Can I ask, you rely primarily on Calder, which is a good case for you, but Walden later seemed to read Calder pretty narrowly

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And I wonder what you do with that.

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Yes, Your Honor.

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I agree that it's certainly fair to read Walden as trying to pare back some of the more expansive implications of the Coulter decision.

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But what he does say, and I think the most important thing that Justice Thomas says in the decision, is he says that defamation is different from other torts when thinking about these questions of personal jurisdiction.

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I believe what he says is the crux of Coulter is that the reputation-based effects of libel connect the defendant to the forum and not just the plaintiff.

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And I think that's certainly true here.

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If you look at the specific features of Calder that Justice Thomas indicated are relevant to the jurisdictional inquiry, I think he says that it's a statement about the district activities, saying that my client is a spy in the district is a statement about the district activities of a district resident.

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It caused reputational damage in the district.

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It was made in media forums that are widely circulated in the district, and it caused injury in the district.

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So all of the elements that Justice Thomas identified as making jurisdiction proper in Calder, I think, are satisfied here.

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I think the only consideration that Justice Thomas identified in Walden as being relevant to the analysis that we don't

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have here is the sources that he relied upon.

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And so, I mean, and on that I'd say two things.

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You know, first is that in his own, before the district court,

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In his briefing, Mr. Browder said that the sources that he relied upon to make the statements were AP news articles and also letters sent to Chuck Grassley.

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Those news articles are pages 38 of the appendix and those are DC based news articles and also Chuck Grassley is obviously located in the district.

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But I think to the extent that, you know, whether or not jurisdiction is present here relied on factual questions that are not available to the defendant without the benefit of discovery, I think it would be appropriate to have jurisdictional discovery on that question of where, of the basis of this.

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You didn't ask for discovery in connection with this analysis.

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You had asked for jurisdictional discovery in relation to the long-arm statute analysis.

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So I don't think you can ask for that here, can you?

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That is true, Your Honor.

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We only requested jurisdictional discovery.

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I guess the only other point I would make that is if there is a jurisdictional discovery on the constitutional question that would help to illuminate whether or not there's jurisdiction here, I think it would be fair to grant.

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I think it's forfeited.

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I think it's waived.

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You didn't ask for it in the district court.

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We don't grant that in the first instance here.

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We're not in the business of granting discovery requests on this court.

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we review the district court's decision.

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You didn't ask the district court.

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Mr. Urduak, on the similarities or differences between our case and Calder, you mentioned that one distinction is the sources.

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And I know you said you didn't think that distinction was supposed to carry too much weight.

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I think another distinction is that the inquirers largest circulation was in California.

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And there's nothing to make us think that CBS's largest circulation is in DC.

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I have another question after that, but do you want to respond on that kind of detail?

[00:20:04] Speaker 02:
Yeah, I mean, I don't think we, I agree, we don't have facts suggesting that DC is the widest audience.

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I think, again, I think what Justice Thomas said in Walden is that it was a media forum that was widely circulated in the district.

[00:20:18] Speaker 02:
I believe there's allegations on that score in the complaint that they had something like 700,000 viewers in the district, but I can confirm that on rebuttal, Your Honor.

[00:20:29] Speaker 04:
I think along the lines of what Judge Katzis was saying, Calder's a good case for you.

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It's arguably been read narrowly since then.

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even if we take Calder as we find it.

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It's a high watermark sort of for this theory that you're depending on.

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So I think you have to be pretty close to on all fours with it.

[00:21:02] Speaker 04:
even if we were to spot you that the sources don't do a lot of work in distinguishing it, and even if we were to spot you that the largest circulation versus a merely large circulation distinction doesn't do a lot of work, I think you're left having to show that the conduct defined here

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allegedly is similar to the conduct allegedly defamed there.

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And in our case, you've got a six minute interview that's primarily focused on a meeting in New York.

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It does mention your client and does say that your client is operating in DC.

[00:21:44] Speaker 04:
But that is about as fleeting as a reference in B. And I went back and looked at the Shirley Jones article and called her

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And by my count, every or almost every paragraph of that article, and there's about 12 paragraphs, talks about California.

[00:22:08] Speaker 04:
In the first paragraph, it talks about insiders who were in California.

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In the second, it says Hollywood.

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The third, it talks about a new TV show, which I assume was in California.

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The third talks about inside sources who visited the set and crew members, presumably all in California.

[00:22:23] Speaker 04:
Fifth paragraph talks about the crew.

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Sixth paragraph talks about shooting the show.

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Seventh paragraph talks about Hollywood and talks about her home in California.

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Eighth paragraph talks about the set.

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Ninth paragraph talks about former staffers.

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Tenth paragraph talks about a former employee.

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Eleventh paragraph talks about another former employee.

[00:22:39] Speaker 04:
Twelfth mentions Hollywood.

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Thirteenth mentions a casting couch in Hollywood.

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Fourteenth mentions a movie in Hollywood.

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Fifteenth mentions the casting couch.

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Again, sixteenth mentions a TV program in Hollywood.

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Seventeenth mentions the Hollywood industry.

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Eighteenth mentions a former associate in Hollywood.

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Nineteenth mentions people who work in Hollywood.

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And the twentieth mentions

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the movie industry in Hollywood.

[00:23:03] Speaker 04:
I mean, to have 20 paragraphs, each of them mentioning California or alluding to California, and then 20 out of 21 paragraphs just seems a lot different than like three seconds in a six minute interview that mentioned Washington once.

[00:23:25] Speaker 02:
Your honor, of course I wouldn't claim that the, you know, the statements that were challenging here are as focused on the on the forum as obviously an article that is entirely about about California but again I want to emphasize we're not.

[00:23:39] Speaker 02:
basing our defamation claim on any of the other statements about the Trump Tower meeting.

[00:23:45] Speaker 02:
The basis of the defamation claim is the claim that Mr. Akhmetchin is a Russian spy, which is not a claim that is limited in time and space to one particular incident in New York.

[00:23:57] Speaker 02:
It's related to his general activities.

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And again,

[00:24:01] Speaker 02:
We're focusing on the statement.

[00:24:02] Speaker 02:
I understand the focus on the statement and whether that by itself is sufficient to support jurisdiction under Walden and Calder.

[00:24:10] Speaker 02:
And I certainly welcome those questions, but I do want to, again, emphasize this is a defendant who has many, many contacts in Washington.

[00:24:19] Speaker 02:
Aside from the museum example I gave, he also submitted a fair complaint against my client in July of 2016, just months after making the museum.

[00:24:29] Speaker 02:
And I think it's fair to say that those specific contacts relate to the dispute.

[00:24:37] Speaker 04:
I take that argument, and it may or may not be a winning argument.

[00:24:43] Speaker 04:
I think when you said what happened here is not as focused on DC as the Jones article was focused on California though.

[00:24:52] Speaker 04:
That makes it really hard to rely on Calder because Calder is the high watermark.

[00:24:59] Speaker 04:
So you've got to be at least as focused on DC as Calder was focused on California or else that outlier case, I think, isn't going to be able to do the work that you need it to do.

[00:25:14] Speaker 02:
Your honor, again, I think that the rule that has come out of Calder is whether the offending statements are focused on the district.

[00:25:21] Speaker 02:
I do think a statement that on the face of it says, your client is a spy in Washington, which is really the only thing we're alleging is defamatory here.

[00:25:29] Speaker 03:
So your theory is this is focused on the district because the statements go to just how

[00:25:44] Speaker 03:
your client does his work as a lobbyist and he lobbies in the district.

[00:25:51] Speaker 03:
But boy, in a world where tweets go across the globe just automatically, someone tweets a statement that another individual

[00:26:13] Speaker 03:
is a corrupt, fill in the blank, lobbyist, lawyer, bad doctor, whatever.

[00:26:21] Speaker 03:
That person can sue in his own forum on the theory that the communication makes its way into the forum, hurts the defendant,

[00:26:40] Speaker 03:
in a more focused way in the forum and is sort of targeted, necessarily targeted at what the defendant is doing primarily in the forum.

[00:26:53] Speaker 03:
I mean, then we're back, you know, then we're back to Judge Pan's point about you could have made the statement in Moscow or London or Hawaii or wherever.

[00:27:07] Speaker 02:
Your honor, I just would say two things.

[00:27:09] Speaker 03:
Again, I don't think the cases have ever suggested that the place from which the defendant made the statements plays a particularly large role in the jurisdictional analysis, to Judge Pan's point, but on the first point about whether or not- No, no, no, but there's no content made from a remote place with no contact to the forum, other than that the statement is saying something derogatory about

[00:27:38] Speaker 03:
the professional activities of the defendant.

[00:27:41] Speaker 02:
I would say yes, Your Honor.

[00:27:43] Speaker 02:
And the reason is that as Justice Thomas said in Walden v. Fiore, I think the way that Justice Thomas narrowed color in a way to be consistent with the way the court came out in Walden v. Fiore was, I think, large part driven by taking on a very distinctive analysis of defamation as a tort, saying that defamation as a tort is different from other torts because it has an element of

[00:28:08] Speaker 02:
publication, the publication within the forum being a necessary element of the claim, ties the defendant to the forum in a way that is different from other types of intentional torts.

[00:28:19] Speaker 02:
So I do think that would be consistent with what Justice Thomas said.

[00:28:21] Speaker 03:
And what's your what's your best case post Walden that would support a theory like that?

[00:28:35] Speaker 02:
Post Walden?

[00:28:37] Speaker 05:
Yeah.

[00:28:39] Speaker 02:
Give me a second, Your Honor.

[00:28:45] Speaker 03:
You can give it to me on rebuttal if you want, or we'll check your brief.

[00:28:49] Speaker 03:
But I am not aware of a lot of such cases.

[00:28:53] Speaker 03:
So anyway.

[00:28:54] Speaker 03:
Thank you, Your Honor.

[00:28:55] Speaker 03:
Do you have anything else?

[00:28:56] Speaker 03:
Do my colleagues have any other questions?

[00:28:58] Speaker 03:
I just have one quick question.

[00:28:59] Speaker 00:
Oh, go ahead.

[00:29:01] Speaker 03:
Could you have sued in New York?

[00:29:05] Speaker 02:
It's a good question.

[00:29:07] Speaker 02:
I think we might have sued in New York.

[00:29:09] Speaker 02:
I believe, given the conduct of Mr. Browder in DC, it certainly made sense to sue in DC, given the fact that that was also where my clients suffered the injury, where the reputational damage occurred.

[00:29:23] Speaker 02:
Given the fact that the statements were made in connection or in relationship to an interview that was about the DC meeting, I think we could have sued in DC as well.

[00:29:33] Speaker 00:
If I may, I just wanted to follow up on your colloquy with Judge Katzis, which I thought was very illuminating.

[00:29:42] Speaker 00:
Is it then your position that any plaintiff in a defamation case can sue in the jurisdiction where that plaintiff resides because the plaintiff has been harmed in that jurisdiction because that's where that plaintiff lives?

[00:29:58] Speaker 00:
and works and therefore the reputational harm, et cetera, is centered and targeted in that jurisdiction.

[00:30:06] Speaker 02:
I'm sorry, Your Honor.

[00:30:07] Speaker 02:
If I said that was enough, I apologize.

[00:30:09] Speaker 02:
I think it sounded that way to me.

[00:30:11] Speaker 02:
Sorry.

[00:30:13] Speaker 02:
I'm sorry.

[00:30:15] Speaker 02:
To clarify, I think in addition to that, you would need allegations that in addition to reputational harm, that the again, the media, the statements were made on media, forms of media that were widely circulated in the district.

[00:30:28] Speaker 00:
And I think in this case, they were media that were circulated

[00:30:32] Speaker 00:
everywhere.

[00:30:33] Speaker 00:
So there was nothing special about the district in terms of the media.

[00:30:37] Speaker 00:
It was just national media outlets.

[00:30:42] Speaker 00:
So I'm still struggling to understand what connects the district to this set of facts in a way that other jurisdictions would not be.

[00:30:52] Speaker 00:
The main thing is

[00:30:56] Speaker 00:
your client's presence in the District of Columbia and the reputational harm here.

[00:31:01] Speaker 00:
And I'm just trying to understand what, in addition, is necessary.

[00:31:04] Speaker 02:
Yes, Your Honor.

[00:31:05] Speaker 02:
Again, as I read Walden, I think that is the plaintiff's suffering injury and reputational harm.

[00:31:14] Speaker 02:
The district is the primary consideration.

[00:31:16] Speaker 02:
In addition, I would say, again, wide circulation in the district, and then also some feature of the statements that gives them a district focus, which we think is met here by the fact that they are claiming that my

[00:31:26] Speaker 00:
Just the statement that said that your client is in Washington is enough because in terms of the media outlets.

[00:31:35] Speaker 00:
The district is no different from Oklahoma or New York or wherever that Twitter and CBS News reaches.

[00:31:42] Speaker 00:
So there's nothing special about the district in terms of the media outlet.

[00:31:46] Speaker 00:
So then all I hear is that the statement was that your client is a spy in Washington, but that's just a statement of his location, which is still the same question.

[00:31:54] Speaker 00:
It's his location.

[00:31:55] Speaker 00:
Is your client's location in DC enough to provide that hook for personal jurisdiction?

[00:32:01] Speaker 00:
It seems like that's your position.

[00:32:04] Speaker 02:
Again, I think the fact that on the face of the statements that explicitly says that my client is a spy in Washington suffices to give the statements a Washington focus, which again is what Justice Thomas identified in Walden.

[00:32:18] Speaker 00:
But that's the key fact to you.

[00:32:19] Speaker 00:
That's the factor on which you hang your argument, just the fact that they said a spy in Washington, which is physically where your client is.

[00:32:27] Speaker 02:
Again, if we're only looking at the statements, then yes, I think that is the feature that gives them a Washington focus.

[00:32:34] Speaker 02:
But again, we also think that there are other contests with the district which support jurisdiction here.

[00:32:39] Speaker 03:
Okay, thank you.

[00:32:40] Speaker 03:
Okay, do my colleagues have any other questions?

[00:32:45] Speaker 03:
Okay, we'll give you rebuttal time and opposition time on the cross field.

[00:32:51] Speaker 03:
Thank you, Mr. Erdelach.

[00:32:52] Speaker 03:
Thank you, Your Honor.

[00:32:53] Speaker 03:
Mr. Nathan.

[00:32:55] Speaker 01:
Thank you, Your Honor.

[00:32:55] Speaker 01:
May it please the court.

[00:32:56] Speaker 01:
My name is Aaron Nathan and I represent the appellee and cross-appellant William Browder.

[00:33:03] Speaker 01:
The appellant's theory of personal jurisdiction in this case would subject Mr. Browder to jurisdiction any time he speaks about Mr. Akhmetchen from anywhere in the world, apparently or seemingly.

[00:33:14] Speaker 01:
for all time, whether under Calder or whether under the more traditional minimum contacts or relatedness standard, it appears that Mr. Browder has simply stuck with Mr. Akhmetchen and the District of Columbia if he ever chooses to speak about him anywhere in the future.

[00:33:29] Speaker 01:
I think that that violates the fundamental principles enunciated in Ford that the relatedness requirement exists to give a defendant fair notice of when a particular activity can subject the defendant to litigation in a particular forum.

[00:33:47] Speaker 01:
And that exists so that the defendant can take measures to structure his primary conduct to avoid or mitigate the consequences of jurisdiction, including, and Ford makes reference to this, by purchasing insurance, which may or may not apply in all cases, or even by severing ties with the forum to avoid jurisdiction here.

[00:34:07] Speaker 01:
Mr. Akhmetshin's theories just do not leave those options open to Mr. Browder.

[00:34:11] Speaker 01:
Now, there's been some discussion of the sources for Mr. Browder's statements in relation to the plaintiff's Calder theory here.

[00:34:20] Speaker 01:
I think it's important to note that there actually is record evidence of what this, I shouldn't use the term evidence, but there is material in the record

[00:34:29] Speaker 01:
that shows what Mr. Browder's sources were.

[00:34:32] Speaker 01:
Mr. Browder's very first statement that is challenged in this case was a tweet in which he shared or retweeted an NBC News article about the plaintiff.

[00:34:41] Speaker 01:
The article was titled, Former Soviet Counterintelligence Officer at Meeting with Donald Trump Jr.

[00:34:47] Speaker 01:
and Russian Lawyer.

[00:34:48] Speaker 01:
In the body of that article,

[00:34:50] Speaker 01:
The article described Mr. Akhmetchin as a former Soviet counterintelligence officer who is suspected by some U.S.

[00:34:58] Speaker 01:
officials of having ongoing ties to Russian intelligence.

[00:35:02] Speaker 01:
Now, that was in the very first tweet that Mr. Browder sent relating to this controversy.

[00:35:08] Speaker 01:
Subsequent statements relied on that information, also on the associated press.

[00:35:13] Speaker 01:
And by the way, that's at Joint Appendix 38.

[00:35:17] Speaker 01:
that subsequent statements relied on both that information and the Associated Press article that my friend referred to before, in which Mr. Akhmetchen served as a primary on-the-record source about the details of the Trump Tower meeting and confirmed his own connections

[00:35:32] Speaker 01:
to a Russian military unit that he described in an on-the-record quote as quote, loosely part of counterintelligence.

[00:35:39] Speaker 04:
Is this all about the merits or are you still making an argument about specific jurisdiction?

[00:35:45] Speaker 01:
Well, my hook certainly for bringing that up was that my friend on the other side was trying to defend the absence of allegations about

[00:35:55] Speaker 01:
the sources for Mr. Browder's statements as still somehow justifying a Calder theory.

[00:36:00] Speaker 01:
I'm just making the point that, in fact, there is information in the record about what Mr. Browder's sources were.

[00:36:06] Speaker 01:
They were the news articles that he woke up and read in New York on the day that he made the first statements.

[00:36:11] Speaker 03:
Let's focus on the contacts to DC.

[00:36:16] Speaker 03:
I mean, the theory of personal jurisdiction is

[00:36:25] Speaker 03:
It's expansive, it's worrisome for reasons we explored with your friend.

[00:36:32] Speaker 03:
But the gist of the defamatory statements has nothing to do with the fact of a meeting at Trump Tower in New York and everything to do with the allegation that

[00:36:53] Speaker 03:
Um, at Madison is a Russian operative, and this is all in the context where the two antagonists are fighting over legislation that want one of them has supported vigorously and the other is supporting a repeal.

[00:37:20] Speaker 03:
And that is all.

[00:37:22] Speaker 03:
necessarily DC focused conduct aimed at Congress.

[00:37:32] Speaker 03:
And so the statement, you know, that this guy who's lobbying you lobbying against me on the other side should not be credited because he's a Russian operative seems pretty DC focused in a way that a lot of other

[00:37:51] Speaker 03:
Defamatory statements, you know, this guy's a crook or, or whatever.

[00:37:55] Speaker 03:
Or not.

[00:37:57] Speaker 01:
Well, your honor, I'd like to be clear about what the record actually is in this case.

[00:38:03] Speaker 01:
The statements at issue were made in July 2017.

[00:38:05] Speaker 01:
The first Magnitsky Act was enacted in 2012.

[00:38:10] Speaker 01:
The follow-on statute was enacted in December 2016.

[00:38:13] Speaker 01:
The complaint alleges that virtually all, all but one of the contacts that are alleged in the complaint have nothing to do with Mr. Akhmetchen.

[00:38:24] Speaker 01:
On their face, they don't mention him, they don't relate to him.

[00:38:27] Speaker 01:
They do relate to Mr. Browder's long-standing advocacy in the district relating to the Magnitsky Act.

[00:38:35] Speaker 01:
But the complaint also alleges that Mr. Akhmetchin joined that debate at some point in 2016 after virtually every one of the contacts on which jurisdiction is alleged here.

[00:38:49] Speaker 03:
So, what we're dealing with is sorry are the are the tests are the contested statements, the tweets.

[00:38:56] Speaker 03:
I have 2 tweets of business insider comment and a CBS comment are those.

[00:39:01] Speaker 03:
After.

[00:39:04] Speaker 03:
Achmedson has weighed in on the statute.

[00:39:09] Speaker 01:
They are after Mr. Akhmetian alleges that he commenced a lobbying campaign relating to the statute.

[00:39:16] Speaker 01:
That's correct.

[00:39:17] Speaker 01:
They are also after virtually all of the contacts that Mr. Browder made in the district relating to the statute.

[00:39:24] Speaker 01:
And I hasten to emphasize the contacts that are alleged only relate to the statute.

[00:39:30] Speaker 01:
The only one that even mentions Mr. Akhmetian

[00:39:33] Speaker 01:
is the Hermitage letter to the DOJ Farah unit.

[00:39:37] Speaker 01:
And the status of that contact, as we discussed in our briefs, is contested.

[00:39:42] Speaker 01:
It's our position that those contacts can't be attributed to Mr. Browder and that appellant actually waives his opportunity to make a contrary argument in this appeal.

[00:39:51] Speaker 01:
But the point is only that Mr. Browder had completed most of, if not all of, the Magnitsky Act-related contacts

[00:40:02] Speaker 01:
by the time Mr. Upmitch even joined the debate over the Magnitsky Act.

[00:40:08] Speaker 03:
Put those aside for a second where you have a pretty good argument on lack of relatedness.

[00:40:16] Speaker 03:
I'm just focused on the statements, the four statements that are not just related to, they are the basis for the claim.

[00:40:26] Speaker 03:
And I'm just exploring with you, just as to those statements, we take the complaint, take the allegations in the complaint.

[00:40:35] Speaker 03:
We assume them to be true.

[00:40:38] Speaker 03:
We charitably read the complaint within the bounds of reasonableness.

[00:40:43] Speaker 03:
And all I'm asking you to focus on is these statements are made in a context where the, the two parties are.

[00:40:56] Speaker 03:
at odds over whether the statute should be repealed.

[00:41:01] Speaker 03:
I'm sure your honor.

[00:41:02] Speaker 03:
So with respect and in that context, there maybe is a greater focus or concentration or directedness vis-a-vis the district.

[00:41:15] Speaker 01:
Well, I'll take the question first under relatedness.

[00:41:19] Speaker 01:
If you're interested in my views as concerns the Calder theory, I'm happy to address that as well.

[00:41:25] Speaker 01:
But I understand you to be asking.

[00:41:27] Speaker 03:
I'm more interested in Calder.

[00:41:30] Speaker 01:
Relatedness of the statements to the district, not the other stuff that in the sense of the statements being whatever it is that Calder would require them to be targeted at and so forth.

[00:41:43] Speaker 01:
Yes.

[00:41:43] Speaker 05:
Yeah, something like that.

[00:41:44] Speaker 01:
Yeah.

[00:41:45] Speaker 01:
So the problem with that theory is that.

[00:41:49] Speaker 01:
Three of the statements don't mention the district at all.

[00:41:52] Speaker 01:
One of them does, but it merely mentions the district.

[00:41:56] Speaker 01:
So even just right off the bat, mentioning is not the same thing as targeting.

[00:42:00] Speaker 01:
It's not the same thing as purposefully availing oneself of the privileges of conducting business in the district.

[00:42:06] Speaker 01:
Those all begin fairly far afield from traditional notions of due process and fair play and the considerations that are at play here.

[00:42:15] Speaker 01:
The reason they can't satisfy Calder is, I think, and has been discussed by the panel already, Calder represents the high watermark of a relatively unusual fount of personal jurisdiction.

[00:42:28] Speaker 01:
It's not unusual for plaintiffs to be sued.

[00:42:32] Speaker 01:
Excuse me.

[00:42:34] Speaker 01:
A simpler way of saying it is probably that

[00:42:37] Speaker 01:
There are ways to sue defendants who make statements in most cases.

[00:42:42] Speaker 01:
The traditional way is to sue them in their home jurisdiction or in somewhat less usual cases in the jurisdiction where they engage in the conduct in question.

[00:42:51] Speaker 01:
And then Calder often creates a third option that's even more exceptional.

[00:42:57] Speaker 01:
And usually that ends up

[00:42:59] Speaker 01:
founding jurisdiction in the plaintiff's home state.

[00:43:03] Speaker 01:
That's only permissible where the factors enunciated in Calder are met.

[00:43:09] Speaker 01:
Anything less than that would end up extending Calder in a way that I'm not sure that any cases subsequent to Calder have done.

[00:43:16] Speaker 03:
Another reason, actually, this would be an... What's the most important distinction in your view?

[00:43:25] Speaker 03:
Assuming we're reading it narrowly and

[00:43:28] Speaker 03:
looking for colorable distinctions.

[00:43:31] Speaker 03:
What's your best one?

[00:43:34] Speaker 03:
Well, the first one I noticed was the

[00:43:39] Speaker 03:
The phone calls into California, and that's not present here, but that seems a little precious to me.

[00:43:46] Speaker 03:
So what else do we have?

[00:43:48] Speaker 01:
Well, I don't want to run away from the point that future cases need to be on all fours with Calder in order to satisfy the test, and this one isn't.

[00:43:56] Speaker 01:
But accepting that you want a little bit more than that, Calder and Walden, subsequent to Calder, talks about the story in Calder.

[00:44:04] Speaker 01:
The focal point of the story was the forum, not just the plaintiff.

[00:44:08] Speaker 01:
Right so it's not just that you know the defendants did X Y Z it's that the statements themselves had a focal point and excuse me a forum as a focal point now many statements will not have any form as their focal point.

[00:44:23] Speaker 01:
Some will have more than one, but here, to the extent that the statements had any focal point at all, it's the forum that the statements were about.

[00:44:33] Speaker 01:
To go lower on the list risks expanding Calder into a more creative use of effects-based jurisdiction than I think the Calder court or the Walden court or this court in subsequent cases has ever really entertained.

[00:44:47] Speaker 01:
I would also just emphasize that Walden itself, although Walden's gloss on Calder is a little bit hard to read in some ways, Walden speaks of the connections that the defendant made with California and says that it was only in addition to that because the focal point of the story was also California that jurisdiction was proper in that case.

[00:45:14] Speaker 03:
If my colleagues have no other questions, we'll let you move on to the cross-appeal.

[00:45:20] Speaker 01:
Thank you, Your Honor.

[00:45:22] Speaker 01:
Our argument in the cross-appeal is quite simple.

[00:45:25] Speaker 01:
No one is contesting that Abbas and Ta correctly state the law as the Supreme Court recently clarified.

[00:45:32] Speaker 00:
I ask you a preliminary question though, if we think there's no personal jurisdiction, we can't reach your anti-slab act issue, correct?

[00:45:41] Speaker 00:
So if there's no personal jurisdiction, we can't get to the merits and this is grounded in the merits, right?

[00:45:46] Speaker 01:
No, respectfully, Your Honor, we disagree with that position.

[00:45:49] Speaker 01:
We've explained why in our papers, but the language of the D.C.

[00:45:52] Speaker 01:
statute is that the claim has to be likely to succeed on the merits.

[00:45:58] Speaker 01:
Now, of course, that can mean many different things.

[00:46:01] Speaker 01:
It can mean things that can't be applied in federal court.

[00:46:04] Speaker 00:
I mean, regardless of what the statute says, it just seems to me that if we find there's no personal jurisdiction, we don't go any further.

[00:46:15] Speaker 01:
Well, if there's no personal jurisdiction, you can't go any further with respect to my client.

[00:46:21] Speaker 01:
But the plaintiff has, I think, indisputably submitted himself to the jurisdiction of DC courts for purposes of whatever, however you want to characterize it, a counterclaim or a motion to dismiss with a prevailing party fee-shifting provision attached to it.

[00:46:38] Speaker 01:
I don't think there's, well, I'm not aware of

[00:46:42] Speaker 01:
I'm happy to address it again on rebuttal or submit a letter to the court if there's a more particular question.

[00:46:47] Speaker 01:
But I'm not aware of the other side making any argument that they're immune from the consequences of the anti-slap law simply because of our argument that there's no personal jurisdiction over Mr. Browder.

[00:47:01] Speaker 01:
They have made the argument that the DC anti-slap law only shifts fees where the dismissal is on the merits.

[00:47:07] Speaker 01:
We think that's wrong for a few reasons.

[00:47:10] Speaker 01:
One of them is that, of course, as everybody knows, personal jurisdiction is a prerequisite to the merits.

[00:47:15] Speaker 01:
So if a plaintiff can't assert personal jurisdiction successfully by definition, that plaintiff is also not likely to succeed on the merits in that litigation.

[00:47:24] Speaker 01:
There's another statutory feature of the anti slap back that I think confirms this 1 of them at 1 of its provisions says that dismissals under the statute shall be with prejudice.

[00:47:36] Speaker 01:
Now, that's probably preempted by federal rule 41, but as a, as a matter of statutory interpretation, there would be no reason to say that if.

[00:47:46] Speaker 01:
The dismissals under the anti slapped act could only be on the merits because DC's equivalent parallel rule 41, just like the federal rule 41 says that unless the court orders otherwise dismissals operate as an adjudication on the merits.

[00:48:02] Speaker 01:
So that's a further reason why we think that.

[00:48:04] Speaker 01:
The the DC any slap back applies here.

[00:48:08] Speaker 00:
I'm sorry.

[00:48:08] Speaker 00:
I'm just confused by this because I don't think we can get to the fee issue without addressing the question of whether there was a likelihood of success in the merits, right?

[00:48:15] Speaker 00:
It's not the whole point of the anti slap special motion that gives rise to the fee shifting.

[00:48:21] Speaker 01:
Yes, your honor.

[00:48:22] Speaker 00:
And if we can't address the merits because there's no personal jurisdiction, I just don't understand how we get there.

[00:48:27] Speaker 01:
Well, what you need to address is whether the plaintiff is likely to succeed on the merits.

[00:48:32] Speaker 01:
And if the plaintiff can't successfully assert personal jurisdiction, then the answer is no.

[00:48:37] Speaker 00:
I understand that.

[00:48:40] Speaker 00:
I'm just having trouble with the notion that there's no personal jurisdiction, but we're going to go on to assess whether there's a likelihood of success in the merits in the context of the fee shifting.

[00:48:48] Speaker 00:
to me that there's a disconnect because I thought if there's no personal jurisdiction, we're done.

[00:48:54] Speaker 00:
Like you can make alternative arguments to dismiss before the district court, but the preliminary one is personal jurisdiction.

[00:48:59] Speaker 00:
And if you win, we're done.

[00:49:01] Speaker 00:
And it seems to me that if you want to pursue anti-SLAPP, you could have consented to jurisdiction and litigated the anti-SLAPP special motion stuff or tried to.

[00:49:10] Speaker 00:
But since you asserted the personal jurisdiction and if you win, it seems to me that you don't get to go to anti-SLAPP.

[00:49:16] Speaker 00:
You're not consenting to the personal jurisdiction for us to get to the merits or for the district court to get to the merits.

[00:49:22] Speaker 01:
That's correct, your honor, although where I think we part ways is that I don't think that the court would have to say anything about the merits of Mr. Ackman's allegations.

[00:49:31] Speaker 01:
or apply the law of defamation to those allegations in order to grant our anti-slap motion.

[00:49:37] Speaker 01:
How?

[00:49:38] Speaker 00:
Because it doesn't have to show the likelihood of success on the merits.

[00:49:41] Speaker 01:
And all the court needs to do to say that there is no likelihood of success on the merits, zero in fact, is come to the conclusion that because there's no personal jurisdiction over the defendant, the court cannot even

[00:49:54] Speaker 00:
That's really bootstrapping.

[00:49:55] Speaker 00:
That's saying if you get dismissal based on no personal jurisdiction, you get fees.

[00:49:59] Speaker 00:
There's a big leap there, isn't there?

[00:50:02] Speaker 00:
In general, that's not the relief for a lack of personal jurisdiction.

[00:50:06] Speaker 00:
You don't get fees.

[00:50:07] Speaker 00:
It's a big deal.

[00:50:08] Speaker 01:
None of this is the usual remedy or the usual relief.

[00:50:13] Speaker 01:
This is just what the D.C.

[00:50:14] Speaker 01:
Council enacted in the Annie Slap Act, and it detached consequences to the bringing of meritless litigation.

[00:50:21] Speaker 00:
I guess, though, that the issue is

[00:50:24] Speaker 00:
You're saying that you should win on the anti-slap fees petition because there's no personal jurisdiction.

[00:50:31] Speaker 00:
But to even get to the anti-slap fees issue, it seems that there needs to be personal jurisdiction.

[00:50:36] Speaker 01:
That's my... We're saying that

[00:50:41] Speaker 01:
granting our motion to dismiss on any grounds that are raised in this appeal, entitles my client to fees, because it entails that the other side could not have prevailed, was never likely to succeed.

[00:50:55] Speaker 00:
Does that mean that in any defamation case, that in any defamation case where there's a dismissal for lack of personal jurisdiction, you get fees, the plaintiff gets fees?

[00:51:04] Speaker 01:
To the extent the other provisions of the anti slap act are satisfied.

[00:51:08] Speaker 00:
Yes, that then you've got to look at the other provisions of the anti slap back, which we can't do if there's no personal jurisdiction, right?

[00:51:14] Speaker 00:
Otherwise, we're just trying to attach fees to any dismissal for lack of personal jurisdiction in a defamation case.

[00:51:24] Speaker 01:
Which provisions of the Anti-SLAP Act apply in any given case is going to vary depending on the circumstances.

[00:51:29] Speaker 01:
That's one of the arguments we've made about why parts of it can apply even when other parts of it are preempted by a valid... But if we're looking at it, we have to have jurisdiction, right?

[00:51:38] Speaker 01:
All you have to do...

[00:51:41] Speaker 01:
I think our position here is is simply that looking at what the any slap statute says applying its terms to the allegations in this case is entirely permissible in the context of evaluating the plaintiffs own.

[00:51:58] Speaker 01:
Violation of what the anti slap statute forbids, which is bringing a meritless slap suit or slap suit.

[00:52:04] Speaker 01:
That's not likely to succeed.

[00:52:06] Speaker 00:
No, I just don't understand how that works with the fact that we have to there has to be personal jurisdiction for us to go to the next step.

[00:52:14] Speaker 00:
I'm not sure otherwise it seems to me if you're just relying the fact that there's a just if there's a dismissal for lack of personal jurisdiction then it seems like you're just saying in any defamation case where there's a dismissal for lack of personal jurisdiction there will be fee shifting.

[00:52:28] Speaker 00:
I can't imagine that's how it works.

[00:52:30] Speaker 00:
I think you have to look at the merits to get to that stage and I don't think we can look at the merits if there's no personal jurisdiction.

[00:52:36] Speaker 01:
Well, you have to look at the merits in the sense that you have to look at the allegations and the complaint and make a conclusion about whether they qualify for the treatment that the anti-SLAPP statute provides for SLAPP claims.

[00:52:46] Speaker 01:
So yes, it needs to be a petition involving public participation and so forth.

[00:52:51] Speaker 01:
But I don't see how that's any different than a district court reviewing, for example, a Rule 11 motion attacking the frivolousness of a pleading in a context where it so happens that in addition to being frivolous on the merits,

[00:53:03] Speaker 01:
there was no personal jurisdiction over the defendant.

[00:53:06] Speaker 01:
I think a district court's fully empowered to review the allegations of the complaint and reach that conclusion, even if it's also reached the conclusion that the defendant, you know, wasn't subject to personal jurisdiction in the first place.

[00:53:19] Speaker 01:
It's just that the anti-SLAPP analysis, just like that one, is a plan-focused analysis.

[00:53:22] Speaker 00:
But in assessing that, in that situation, they don't have to look at the merits of the case.

[00:53:27] Speaker 01:
Well, I think it's not to the same extent.

[00:53:31] Speaker 01:
I think you stop a little short of deciding whether it states a claim for relief.

[00:53:35] Speaker 01:
I agree with that, but I don't think you have to get that far either, because all we're saying is that failure to establish personal jurisdiction entails

[00:53:43] Speaker 01:
but there's no likelihood of success on the merits.

[00:53:45] Speaker 01:
You don't actually have to look at whether or not Mr. Akhmetian's allegations stay to claim for relief, only whether as alleged they qualify as... I understand, but then we are in the position that every defamation case means there's fee shifting.

[00:54:00] Speaker 00:
Every defamation case that's dismissed for lack of personal jurisdiction, there would be fee shifting under anti-SLAP.

[00:54:05] Speaker 01:
If filed in D.C.

[00:54:08] Speaker 01:
and if it falls within the definition of a slap lawsuit under D.C.

[00:54:15] Speaker 01:
law, yes, that is our position, to be clear.

[00:54:18] Speaker 01:
And that's what the D.C.

[00:54:19] Speaker 01:
Council intended, to shift the risk of bringing litigation that ultimately has no likelihood or is not likely to succeed on the merits to the plaintiff

[00:54:29] Speaker 01:
and to deter either meritless, frivolous lawsuits or lawsuits that just should never have been brought in this jurisdiction in the first place, which I think, as this litigation shows, can do just as much damage and involve just as much delay and wasteful litigation as lawsuits that spend eight years litigating the merits as opposed to personal jurisdiction, as in this situation.

[00:54:51] Speaker 04:
I realize that American studies and ended enterprises being manned are relatively recent.

[00:54:59] Speaker 04:
and you think that they had unsettled where the circuit was before.

[00:55:04] Speaker 04:
But since ABAS has any DC circuit panel granted an anti-slap motion,

[00:55:14] Speaker 01:
No, Your Honor, we are asking this panel to recognize something that this court has yet to recognize, which is that contrary to the assumptions about DC law that the Abbas panel relied on,

[00:55:30] Speaker 01:
The DC anti slap statute actually operates in some ways that yes are incompatible with federal diversity litigation because the federal rules grant them but in other ways that are not and when the DC anti slap act can operate.

[00:55:45] Speaker 01:
in a way that's not preempted by the federal rules, we think that Supreme Court precedent requires the federal courts to apply it and allow it to operate in those ways.

[00:55:56] Speaker 01:
So here, we have a situation where nobody had to do anything that was foreign to the procedures of federal litigation in order to come to the conclusion that the complaint had to be dismissed.

[00:56:09] Speaker 01:
It turns out that in that situation, D.C.

[00:56:11] Speaker 01:
law attaches a fee-shifting remedy.

[00:56:13] Speaker 01:
That's the end of the story as far as we're concerned, and it doesn't make any difference that in another case, perhaps, there might have been arguments about whether a discovery stay applied if this case had been brought in DC State Court, DC Superior Court.

[00:56:27] Speaker 01:
There would have been a state of discovery.

[00:56:29] Speaker 01:
There would have been expedited hearing on the motion.

[00:56:32] Speaker 01:
There might have been other procedural requirements.

[00:56:33] Speaker 01:
As I alluded to before, dismissal would have been with prejudice.

[00:56:37] Speaker 01:
None of those things could have happened in federal court, but the fact is that they didn't and DC law still requires a fee shifting remedy in that situation.

[00:56:49] Speaker 01:
It's our submission that to ignore that aspect of DC law as it currently operates would be tantamount to imposing a sort of statutory drafting requirement on state legislatures.

[00:57:03] Speaker 00:
I mean, it strikes me as you're talking that this may not comport with the policies behind the Anti-SLAP Act.

[00:57:10] Speaker 00:
The Anti-SLAP Act is intended to discourage sort of vexatious litigation.

[00:57:17] Speaker 00:
filing defamation claims in order to harass another person.

[00:57:23] Speaker 00:
So what if it's a meritorious claim on the merits, but there's no personal jurisdiction because they filed in the wrong place?

[00:57:29] Speaker 01:
Yeah, the consequence of that is fee shifting.

[00:57:31] Speaker 01:
And the reason is that the Anti-SLAP Act is meant to deter vexatious litigation.

[00:57:38] Speaker 00:
But I'm just saying it's not vexatious.

[00:57:39] Speaker 00:
What if it's completely meritorious, but they made a mistake and filed in the wrong jurisdiction?

[00:57:44] Speaker 01:
Well, a plaintiff who makes a mistake might be in a more sympathetic position, but plaintiffs can... But your position would affect the person who made a mistake and had a meritorious claim if it's filed in the wrong place.

[00:57:58] Speaker 01:
Yes, because the Anti-SLAP Act engages in general as well as specific deterrence.

[00:58:04] Speaker 00:
But the Anti-SLAP Act doesn't specifically deal with this scenario, but you want to extend it to a scenario which might not

[00:58:10] Speaker 00:
promote the policies behind the anti-SLAPP Act.

[00:58:13] Speaker 01:
I think that the anti-SLAPP Act deals with this scenario explicitly by providing that the SLAPP claim has to be dismissed if it's not likely to succeed on the merits.

[00:58:23] Speaker 01:
Plenty of claims that are eventually meritorious do not appear likely at the pleading stage

[00:58:29] Speaker 01:
And ordinarily in federal court, that's not a basis for dismissal, even if a savvy judge thinks that a plaintiff's not going to succeed if the 12b6 standard is satisfied, the claims go forward.

[00:58:40] Speaker 01:
That's a reason that the likelihood of success standard as well.

[00:58:45] Speaker 00:
All I'm saying is I think that the purpose behind the Anti-SLAM Act and its focus on merits, likelihood of success in the merits, suggests that they might not have contemplated

[00:58:56] Speaker 00:
you know, a meritorious claim, this is just my hypothetical, being brought, and there's a mistake, they filed in the wrong place, and there wasn't personal jurisdiction, and there should be fee-shifting in that context, because it's not the kind of vexatious litigation that the Anti-SLAP Act is intended to address.

[00:59:12] Speaker 01:
Well, respectfully, your honor, I think I think it's a mistake to conclude or to infer that it's only actually vexatious litigation that ends up subject to the fee shifting remedies of the anti slap back.

[00:59:26] Speaker 01:
I mean, there are almost understand you're just asking for an extension of it.

[00:59:30] Speaker 00:
I'm just it's not clear to me that the policy.

[00:59:32] Speaker 00:
reasons behind it, support the extension.

[00:59:34] Speaker 01:
No, I think in the core applications of the Anti-SLAP Act, it will sometimes be the case that a plaintiff with a claim that would otherwise ultimately prove to be meritorious has their complaint dismissed under the Anti-SLAP Act because it's not likely to succeed at the pleading stage.

[00:59:52] Speaker 00:
Can you give me an example of that?

[00:59:54] Speaker 00:
Can you just give me a concrete example of a situation where you're not likely to succeed, but then you ultimately prevail on the merits?

[01:00:00] Speaker 01:
Well, likely to this is the whole reason why the likelihood of that likely to succeed standard can apply in federal court, you know, to like a factual scenario in which somebody is not likely to succeed at this stage, but then they ultimately do succeed at the end because those are supposed to be this is supposed to run together.

[01:00:20] Speaker 01:
No, well, no, I would submit that they're not.

[01:00:23] Speaker 01:
I think that's why.

[01:00:24] Speaker 00:
Give me an example.

[01:00:26] Speaker 01:
Give me an example.

[01:00:28] Speaker 00:
Give me a factual scenario that's an example of something that seems not likely to succeed in the merits at this stage, but is ultimately meritorious.

[01:00:36] Speaker 01:
I apologize, my mind is blank on that, but I think it's the reality that the plausibility standard only looks to what a plaintiff is able to allege, and then merits, adjudications look to what a plaintiff is able to prove after discovery.

[01:00:52] Speaker 01:
It seems plain to me that sometimes plaintiffs who don't have access to all the evidence at the pleading stage are just not in a strong position to allege the case.

[01:01:02] Speaker 01:
And yet, because the 12b6 standard is more forgiving, assumes their allegations to be true, draws inferences in their favor, are able to get past that stage, even though if the likelihood of success... Well, just to take another tack at it, likelihood of success is at least analogous to the preliminary injunction stage.

[01:01:19] Speaker 01:
And it's frequently the case that a claim isn't likely to succeed on the merits at the pleading stage, even though it still survives a 12b6 motion.

[01:01:31] Speaker 01:
That strikes me as a straightforward occurrence under, or at least it's the way the rules are structured in federal court.

[01:01:39] Speaker 01:
It's also, I mean, just to return to the point about the purposes of the anti-SLAPP statute, it may be a regrettable consequence, but it is the policy choice that the DC council made

[01:01:49] Speaker 01:
That in order to deter vexatious and frivolous litigation, it had to draw the circle a little bit wider and end up attaching fee shifting remedies to some plaintiffs who, if things had gone otherwise, if they had access to a little bit more information at the time they filed their lawsuit, they might have prevailed.

[01:02:07] Speaker 01:
But couldn't and didn't, and therefore because they weren't able to show that they were likely to succeed on the merits at the pleading stage, they have to pay the fees.

[01:02:14] Speaker 01:
And the anti-SLAPP statute's purpose is simply to shift the burden, the risk of that outcome to the plaintiff rather than the SLAPP defendant.

[01:02:23] Speaker 01:
It's confined to an area of litigation where the D.C.

[01:02:26] Speaker 01:
Council, I think, had

[01:02:27] Speaker 01:
not just reasonable but powerful reasons to worry about defendants who've engaged in protected activity whether under the First Amendment or just consistent with First Amendment values and are instead sort of as punishment for that held into court and then forced to bear the burdens not just of losing litigation but of litigation itself.

[01:02:46] Speaker 01:
And I think all of that points to a rule that includes dismissals for personal jurisdiction because the plaintiffs should have to bear the risk of making a mistake in that area as well.

[01:02:56] Speaker 01:
It's just an exception to the American rule and a very tightly circumscribed category of cases.

[01:03:02] Speaker 01:
It works like this in other countries and there's nothing particularly anomalous about it.

[01:03:06] Speaker 01:
Judge Walker asked this question of my friend before, but I can't think of a reason why this litigation could not have been brought in New York as opposed to in D.C.

[01:03:16] Speaker 01:
There were other options available to this plaintiff.

[01:03:20] Speaker 01:
By the way, this plaintiff's merits claims are not meritorious.

[01:03:23] Speaker 01:
And while there may be sympathetic plaintiffs out there who will get caught up in this and we can worry about their cases when it arises, this just isn't one of those cases.

[01:03:33] Speaker 01:
I don't think the court should hesitate to read DC law the way the DC Court of Appeals reads it, apply Supreme Court precedent on the Erie-Hanna Rules Enabling Act, Rules of Decision Act,

[01:03:46] Speaker 01:
and grant the fee-shifting remedy that we've requested.

[01:03:50] Speaker 03:
Mr. Nason, you're over.

[01:03:52] Speaker 03:
Judge Walker, do you have questions?

[01:03:54] Speaker 03:
No.

[01:03:55] Speaker 03:
Please, Judge Casas, if you were going to.

[01:03:57] Speaker 03:
No, I was just going to cut off the advocate pending any of my colleagues' questions.

[01:04:04] Speaker 03:
Go ahead.

[01:04:05] Speaker 04:
I do have one or two.

[01:04:08] Speaker 04:
Someone is entitled to Andy Slap.

[01:04:13] Speaker 04:
money when they prevail on emotion brought under 165502 and you haven't prevailed on emotion brought under 165502.

[01:04:27] Speaker 04:
So why is it this is not just sort of like textualism 101?

[01:04:32] Speaker 04:
Is that just kind of too literal or?

[01:04:35] Speaker 01:
It's both well, it's it's true.

[01:04:37] Speaker 01:
The district or denied the motion.

[01:04:39] Speaker 01:
We're saying the district court should have granted it and you need to reverse the denial of that motion.

[01:04:44] Speaker 01:
But it's also a little too literal both as a matter of DC law and as a matter of the way the federal and DC rules are written.

[01:04:51] Speaker 01:
under 165502 just doesn't necessarily mean including all the possible bases for dismissal under 165502.

[01:05:01] Speaker 01:
It I think is more fairly read to mean under any of the possible bases for dismissal, which include, as the American Studies Court has held, a dismissal for failure to state a claim under sort of ordinary plausibility pleading rules.

[01:05:16] Speaker 01:
So that's one textual answer.

[01:05:18] Speaker 01:
The other one, which we have in a footnote in our briefs, but which I want to emphasize here is that the rule in federal court is that all relief is sought by motion.

[01:05:27] Speaker 01:
That's rule seven.

[01:05:28] Speaker 01:
There is no motion under any particular state statute in federal court under any circumstances, even in ones where it's just obvious

[01:05:36] Speaker 01:
that the state statute applies.

[01:05:38] Speaker 01:
You seek relief in federal court by filing a motion under Rule 7.

[01:05:41] Speaker 01:
By the way, it's the same in DC Superior Court.

[01:05:44] Speaker 01:
You file a motion under Rule 7, at least in the strictest, most technical sense, and you ask for relief based on the application of some substantive law.

[01:05:54] Speaker 01:
Here, that's the provisions of 165504 that attach consequences to the dismissal

[01:06:02] Speaker 01:
motion where you have a failure to state a claim on which relief can be granted.

[01:06:10] Speaker 03:
Okay, that's okay.

[01:06:12] Speaker 03:
Any other questions?

[01:06:15] Speaker 03:
Okay, thank you, Mr. Nathan.

[01:06:17] Speaker 03:
We will give you some rebuttal time on the curbs.

[01:06:22] Speaker 03:
Back to Mr. Erdelach.

[01:06:25] Speaker 02:
Thank you, Your Honor.

[01:06:26] Speaker 02:
I'd just like to make a few points.

[01:06:28] Speaker 02:
There was a colloquy with my friend discussing Mr. Browder's contacts with the district.

[01:06:33] Speaker 02:
A colloquy is mostly focused on how the instant suit relates to Browder's work in the district lobbying for the Magnitsky Act.

[01:06:42] Speaker 02:
I, you know, again, just want to make it clear that in addition to those specific contacts related to the Magnitsky Act, again, Mr. Browder gave interviews with DC-based

[01:06:54] Speaker 02:
media outlets concerning a screening of a documentary at the museum, which was formerly in DC, that Mr. Akhmetian arranged.

[01:07:04] Speaker 02:
And a group that Mr. Akhmetian was involved with arranged to screen that documentary at the museum.

[01:07:10] Speaker 02:
And in those specific media outlets, Mr. Browder claimed that the screening at the museum was done at the behest of Russian intelligence.

[01:07:21] Speaker 02:
And in fact, in a Thera complaint that he submitted to Congress the following month, that specific museum screening was in fact mentioned in the Thera complaint as another instance in which Mr. Akhmetchen had served on behalf of Russian intelligence.

[01:07:40] Speaker 02:
So those contexts, which again are just a prior chapter of the current controversy,

[01:07:44] Speaker 02:
that we see now where Mr. Browder has accused my client of being a Russian spy and done so in order to protect his reputation in relationship to Magnitsky, I think, does relate to the current suit.

[01:07:57] Speaker 03:
The statements you just mentioned, though, are not the four that form the basis for this claim, correct?

[01:08:05] Speaker 02:
No, Your Honor.

[01:08:05] Speaker 02:
These are other district activities that support the exercise of jurisdiction related to that statement.

[01:08:14] Speaker 03:
greater degree of targeting, but tougher case on relatedness.

[01:08:23] Speaker 02:
I think it's fair to say that they're related in the sense that there's an affiliation between these prior acts that Mr. Browder undertook in the district and the current controversy between the two claimants, including essentially an identity of the insinuations about my client.

[01:08:39] Speaker 02:
There were previous occasions in which Mr. Browder had said, a convention is a spy.

[01:08:44] Speaker 02:
He's a spy in Washington, DC.

[01:08:46] Speaker 02:
and specifically enumerated instances that took place in the district where Mr. Ock mentioned was acting as a spy and in news outlets that are located in DC.

[01:08:59] Speaker 02:
Both of the news outlets and the two media articles that gave related to this are in DC.

[01:09:04] Speaker 02:
One other point just on Calder, just to make it clear.

[01:09:08] Speaker 02:
So there were two defendants in Calder about the facts, and I want to make it clear that one of the defendants, Calder himself, was in fact not the reporter that created the article or reached out into California for sources in the article.

[01:09:24] Speaker 02:
Mr. Calder's only involvement in the article at all was that he edited the article.

[01:09:30] Speaker 02:
and that he refused a request on behalf of Ms.

[01:09:33] Speaker 02:
Jones to retract the article and had no other relevant contacts at all with California and jurisdiction was found to be proper under those facts.

[01:09:43] Speaker 02:
And just finally, on the question about whether or not on the anti-SLAPP issue, as I understand, the other side has, I don't think no longer maintains that the DC SLAPP Act Special Motion to Dismiss Procedure can apply in federal court.

[01:09:58] Speaker 02:
And just to make it clear, it can apply in federal court because as the Supreme Court just ruled in Buckley-Choy, the DC Anti-SLAPP Act Special Motion to Dismiss Procedure answers the same question as the federal rule.

[01:10:12] Speaker 02:
So it can't apply in federal court.

[01:10:14] Speaker 02:
He can't bring a motion under that provision in federal court.

[01:10:17] Speaker 02:
And as Jeff Walker pointed out, Section 5504A says that you may receive fees if you prevail on an action under 5502.

[01:10:26] Speaker 02:
So I don't understand how they could possibly claim that they are entitled to fees based on a motion that cannot be brought in federal court.

[01:10:33] Speaker 04:
And then I'm not saying I agree with him, but Mr. Nathan's response was he says he should have prevailed on that motion.

[01:10:41] Speaker 04:
And I think I understand you to be saying at least part of the Anti-SLAP Act is clearly preempted.

[01:10:50] Speaker 04:
So that means that all of the Anti-SLAP Act is preempted.

[01:10:56] Speaker 04:
And I guess my first question is, does the Anti-SLAP Act have a severability clause or an anti-severability clause?

[01:11:06] Speaker 04:
I don't think it does, but you can correct me if I'm wrong on that.

[01:11:10] Speaker 02:
I'm not sure off the top of my head, Your Honor, and you can certainly ask my other side.

[01:11:13] Speaker 02:
But I think we don't.

[01:11:15] Speaker 02:
Yeah, sorry.

[01:11:15] Speaker 04:
Go ahead.

[01:11:16] Speaker 04:
No, go ahead.

[01:11:17] Speaker 02:
But again, it's not necessary to resolve this question to claim that the entire Anti-SLAP Act is preempted.

[01:11:26] Speaker 02:
I think the only thing that you would need to find is that specifically the section of the Anti-SLAP Act that does conflict with the federal rules, which is 5502, and that special motion to dismiss procedure, that cannot apply in federal court.

[01:11:39] Speaker 02:
And because, again, you wouldn't need to find that the fee shifting provision is not

[01:11:44] Speaker 02:
applicable in federal court, all you would need to find is that the fee-shifting provision explicitly ties the availability of fees to success under another provision of the DC Anti-Slap Act that I think undisputedly cannot apply.

[01:11:57] Speaker 00:
Do you have a position on how this Anti-Slap Act motion relates to the lack of personal jurisdiction motion?

[01:12:07] Speaker 00:
Like, if we find there's no personal jurisdiction, can we even reach the Anti-Slap Act?

[01:12:12] Speaker 02:
I don't think you can, Your Honor, especially because the saying that there's a lack of jurisdiction means there's a lack of power to adjudicate or adjudicate on the merits.

[01:12:23] Speaker 02:
And I think also I agree in general that it seems that the purpose of the Anti-SLAP Act is to deter frivolous lawsuits, not meritorious lawsuits that are merely brought in the wrong.

[01:12:34] Speaker 04:
I mean, it seems like it's doubly frivolous if it's both not meritorious and filed in the wrong court.

[01:12:42] Speaker 04:
It seems like you're saying that the act imagines rewarding people for filing in the wrong court by protecting them from the attorney's fees that they might otherwise have to pay if they had filed in the right court.

[01:12:54] Speaker 02:
Again, on the assumption that we do find that the special motion dismissed does apply, and the question is whether a non-merit special qualifies, I don't think that a case that is meritorious in terms of the actual claims that it's making but is simply in the wrong place is doubly frivolous.

[01:13:14] Speaker 04:
You would agree that a plaintiff is unlikely to succeed on the merits if they file on a court with no jurisdiction?

[01:13:24] Speaker 02:
I just don't think filing in a court in the wrong jurisdiction has any relation to the underlying merits of the case.

[01:13:30] Speaker 04:
In order to succeed on the merits, you have to find a court with jurisdiction.

[01:13:35] Speaker 04:
So if you haven't found a court with jurisdiction, you're unlikely to succeed on the merits.

[01:13:41] Speaker 02:
Well, I think the question is, if there is any court that has jurisdiction, certainly it could be brought somewhere else.

[01:13:48] Speaker 02:
It's not unlikely to succeed on the merits.

[01:13:51] Speaker 02:
I just think that the question of merits goes to jurisdiction as well.

[01:13:54] Speaker 03:
You're reading likelihood of success on the merits to mean is not dismissible under rule 12b6.

[01:14:08] Speaker 02:
Well, again, I think that's, yes, I think likelihood to succeed on merits is similar to a rule b6 standard, but again- Possible reading, but it's not an obvious reading.

[01:14:22] Speaker 03:
Success on the merits.

[01:14:24] Speaker 03:
could fail for merits reasons or lack of jurisdiction.

[01:14:30] Speaker 02:
It's possible, Your Honor.

[01:14:31] Speaker 02:
And again, that's, again, why your fundamental position is that 5502 cannot apply in federal court.

[01:14:37] Speaker 02:
Because again, fees are only available for a successful motion under 5502.

[01:14:42] Speaker 02:
Regardless of the sort of basis of the dismissal, it just is not, fees are not available.

[01:14:47] Speaker 04:
Is it the case that when the Supreme Court considers likelihood of success on the merits in the context of a stay motion that even if the movement is guaranteed to win on the merits below that at least some justices had said that that movement would not meet the standard for likelihood of success in the merits if the case is it's not cert worthy.

[01:15:12] Speaker 02:
Oh, sorry.

[01:15:15] Speaker 02:
I hadn't thought of that.

[01:15:16] Speaker 02:
So the question is, if a case is likely to succeed but not cert-worthy, would it be proper to say that it's not likely to succeed on the merits?

[01:15:30] Speaker 04:
Would it be proper for the Supreme Court to say in the context of the stay motion that the movement has not demonstrated likelihood of success on the merits?

[01:15:39] Speaker 02:
Because it's not cert-worthy?

[01:15:41] Speaker 04:
I thought that's what Justice Barrett had written in Doe's v. Mills, and I thought that Justice Kavanaugh had written the same thing in Labrador v. Poe a year or two later.

[01:15:51] Speaker 04:
I'm not sure any of the justices have written in disagreement with that.

[01:15:56] Speaker 02:
That does seem right, Your Honor.

[01:15:59] Speaker 04:
And if that's right, then that would suggest that there are more things that can affect likelihood of success on the merits than who is correct about

[01:16:10] Speaker 04:
about liability, I guess.

[01:16:12] Speaker 04:
Who is correct about the things we would argue about in a 12b6 motion?

[01:16:17] Speaker 02:
That does seem right, Your Honor.

[01:16:18] Speaker 02:
I think the distinction I would, again, point to is that a lack of personal jurisdiction goes to the court's power to grant relief.

[01:16:27] Speaker 03:
I appreciate that.

[01:16:29] Speaker 03:
Do my colleagues have any other questions?

[01:16:36] Speaker 03:
Okay.

[01:16:37] Speaker 03:
Thank you.

[01:16:39] Speaker 03:
Thank you, Mr. Erdelach.

[01:16:40] Speaker 03:
Let's see.

[01:16:41] Speaker 03:
We're back to Mr. Nathan for rebuttal on the cross appeal.

[01:16:48] Speaker 01:
Thank you, Your Honor.

[01:16:49] Speaker 01:
I'd just like to make one quick point addressing some of the questions raised by Judge Walker about how the answer to the same question and the severability analysis interact here.

[01:17:03] Speaker 01:
There is no severability clause that we're not relying on a DC law severability clause here.

[01:17:09] Speaker 01:
The severability principles come from two places.

[01:17:12] Speaker 01:
They come from the Rules Enabling Act, which contains its own limitation on the preemptive scope of even a valid federal rule that it shouldn't enlarge.

[01:17:20] Speaker 01:
modify, et cetera, any substantive right.

[01:17:22] Speaker 01:
It also comes from the Supreme Court's precedence and this Court's precedence on how you limit the scope of the question, so to speak, that's being answered.

[01:17:31] Speaker 01:
Of course, if you let the sort of answer the same question standard sweep as broadly as, you know, the literal language of that phrase says it could, well, sometimes the questions could be defined at the highest possible level of generality, could be very, very broad, and suddenly a whole swaths of state law are preempted

[01:17:50] Speaker 01:
by federal rules that are actually quite narrowly targeted to particular situations.

[01:17:54] Speaker 01:
So this court actually has a case post Shady Grove applying the answer to the same question standard to the interaction between a federal rule of evidence and a DC law.

[01:18:05] Speaker 01:
That's Burke versus Air Service and at 685

[01:18:10] Speaker 01:
federal reporter third at 1108, you can see how the panel in that case applied the standard and held that because the two rules could operate alongside one another.

[01:18:23] Speaker 01:
the state rule was not preempt by the federal rule under the Shady Grove standard that the Supreme Court just reaffirmed in Bach versus Choi.

[01:18:31] Speaker 01:
So our submission is that that's exactly what the court needs to do here.

[01:18:35] Speaker 03:
Is that case in the briefs?

[01:18:39] Speaker 01:
Yes, it is.

[01:18:40] Speaker 03:
Sorry, give me the name again.

[01:18:42] Speaker 01:
It's Burke against and I think it's air services.

[01:18:47] Speaker 01:
But the citation is 685 federal reporter third and the pen site I was discussing is 1108.

[01:18:54] Speaker 01:
Give me a moment.

[01:18:55] Speaker 01:
I can give you the page in the brief at which it appears.

[01:19:01] Speaker 03:
Just want to make sure I can find it easily.

[01:19:05] Speaker 01:
It's in your

[01:19:08] Speaker 01:
It's almost certainly in our response.

[01:19:11] Speaker 01:
Yes, our red group.

[01:19:18] Speaker 01:
I have it, Burke.

[01:19:19] Speaker 01:
Okay, thank you.

[01:19:20] Speaker 01:
Thank you, your honor.

[01:19:21] Speaker 01:
If the court has no further questions, thank you for your time.

[01:19:27] Speaker 03:
My colleagues, okay.

[01:19:29] Speaker 03:
Thank you to both councils for the very helpful arguments.

[01:19:33] Speaker 03:
The case is submitted.