Fees Awarded Against Attorney Who Sued For Wikipedia Edits

A decision today written by Senior Judge Farrell of the District of Columbia Court of Appeals holds

May an anonymous civil defendant who files and prevails on a special motion to quash a subpoena for identifying information under D.C. Code § 16-5503 (2012 Repl.), part of the District‟s Anti-SLAPP Act (the Act), be awarded attorney‟s fees under D.C. Code § 16-5504 (a) without showing that the suit prompting the subpoena was frivolous or improperly motivated? We answer that question yes. We further hold, after considering the language and legislative history of the Act, that a successful movant under § 16-5503 is entitled to reasonable attorney‟s fees in the ordinary course — i.e., presumptively — unless special circumstances in the case make a fee award unjust. Because no such circumstances exist on the record of this case, we reverse the order of the trial court denying altogether the defendant/movant‟s request for attorney‟s fees, and remand the case solely for the court to consider the reasonableness of the amount of fees requested.

The story

In this case, appellee Susan L. Burke, an attorney, sued multiple anonymous defendants (“John Does 1-10”) alleging defamation and other torts arising from edits made to a Wikipedia webpage established in Ms. Burke’s name. John Doe 1 had allegedly added information to the page using the name Zujua. After Ms. Burke caused a subpoena to be issued to obtain Wikipedia‟s user data and thereby learn Zujua’s (and others’) identity, Zujua filed a special motion to quash the subpoena. The trial court denied the motion, but this court reversed. We held as a matter of law that Zujua had shown “that his speech is of the sort that the statute is designed to protect,” id. at 1036, 1043-44,3 and that Ms. Burke, who was thus “required to show malice on Zujua’s part . . . to succeed” in rebuttal, had failed to show a “likelihood of success on [her] underlying claims.” Id. at 1045.

The court concludes that Zujua is entitled to an award of attorneys fees.

No…circumstances disqualifying Zujua from an award of reasonable fees appear on the record of this case. Appellant Burke cites, presumably as one such circumstance, the trial judge’s determination that Zujua‟s attorneys are employed by a public interest organization that, judging from its website-stated mission, “already achieved an award by succeeding in its own interest” through having “protect[ed Zujua‟s] right to anonymous free speech.” See note 5, supra. But § 16-5504 (a) provides for an award of fees to the “moving party who prevails” (emphasis added), not to a party‟s counsel.

 Associate Judge Mcleese concurred and dissented

The court interprets the District’s Anti-SLAPP Act as presumptively entitling a successful movant to an award of attorney.s fees, unless special circumstances would render such an award unjust. Although the issue is not free from doubt, I conclude that the Act is better read to give trial courts discretion whether to award attorney’s fees to successful movants.

(Mike Frisch)