JOHN DOE NO. 1 v. SUSAN L. BURKE

District of Columbia
Court of Appeals

No. 15-CV-690 MAR 10 2016

JOHN DOE NO. 1,
Appellant,

v. CAB-7525-12

SUSAN L. BURKE,
Appellee.

On Appeal from the Superior Court of the District of Columbia
Civil Division

BEFORE: EASTERLY and MCLEESE, Associate Judges; and FARRELL, Senior
Judge.

JUDGMENT

This case came to be heard on the transcript of record, the briefs filed, and
was argued by counsel. On consideration whereof, and as set forth in the opinion filed
this date, it is now hereby

ORDERED and ADJUDGED that the judgment on appeal is reversed, and
the case is remanded to the trial judge to evaluate the reasonableness of the award
requested.

For the Court:

Dated: March 10, 2016.

Opinion by Senior Judge Michael W. Farrell.

Opinion, concurring in part and dissenting in part, by Associate Judge Roy W. McLeese.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 15-CV-690 3/10/16

JOHN DOE NO. 1, APPELLANT,

v.

SUSAN L. BURKE, APPELLEE.

Appeal from the Superior Court of the
District of Columbia
(CAB-7525-12)

(Hon. Maurice A. Ross, Trial Judge)

(Argued January 14, 2016 Decided March 10, 2016)

Michael E. Rosman, with whom Christopher J. Hajec was on the brief, for
appellant.

William T. O’Neil for appellee.

Arthur B. Spitzer, American Civil Liberties Union of the Nation‟s Capital,
and Bruce D. Brown and Gregg P. Leslie, The Reporters Committee for Freedom
of the Press, filed a brief amicus curiae on behalf of appellant.

Before EASTERLY and MCLEESE, Associate Judges, and FARRELL, Senior
Judge.

Opinion for the court by Senior Judge FARRELL.

Opinion by Associate Judge MCLEESE, concurring in part and dissenting in
part, at page 24.
 2

FARRELL, Senior Judge: 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.

I.

A.

The Anti-SLAPP Act, as explained in our earlier opinion, Doe No. 1 v.
 3

Burke, 91 A.3d 1031 (D.C. 2014) (Doe I), was enacted by the D.C. Council to

“protect the targets of . . . suits” intended “as a weapon to chill or silence speech.”

Id. at 1033.1 One way the Act does so, “recognizing the importance of anonymous

speech on matters of public interest,” id. at 1036, is to enable an individual

“„whose personal identifying information is sought‟ to safeguard his identity by

filing a „special motion to quash‟ a subpoena,” id. (quoting D.C. Code § 16-5503

(a)), and, if successful, “avoid being named in a suit and served with a complaint.”

Id. To succeed on a special motion to quash,

the moving party must “make[ ] a prima facie showing
that the underlying claim arises from an act in
furtherance of the right of advocacy on issues of public
interest.” D.C. Code § 16-5502 (b); see also D.C.
Code § 16-5503 (b). Upon such a showing, the motion
will be granted unless the opposing party demonstrates a
likelihood of success on the merits of his or her
underlying claim. Id.

Doe I, 91 A.3d at 1036 (brackets in original).2

1
“SLAPP” stands for a “strategic lawsuit against public participation.” Doe
I, 913 A.3d at 1033.
2
The same standards apply to a “special motion to dismiss,” D.C.
(continued…)
 4

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

__________________
(…continued)
Code § 16-5502 (2012 Repl.), not at issue in this case. Doe I, 91 A.3d at 1036.
Our analysis thus focuses on the “special motion to quash,” though most of what
we say applies to the former motion as well.
3
Specifically, in editing Ms. Burke‟s webpage, Zujua had spoken — or
“advoca[ted]” — on an “issue of public interest,” namely one “related to . . . a
public figure,” § 16-5501 (3), because Ms. Burke is “a limited-purpose public
figure” under standards applied by this court and others in the defamation context.
Doe I, 91 A.3d at 1040-43 (concluding that Ms. Burke had assumed a visibly
public position in connection with, among other things, her lawsuit against a
company then known as Blackwater for injuries to civilians resulting from
shootings in 2007 in Iraq). Nor, we held, was Zujua‟s speech “directed primarily
toward protecting the speaker‟s commercial interests,” so as to disqualify it, under
another provision of § 16-5501 (3), from the protection of the special motion. Id.
at 1043 n.16.
 5

“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.

B.

On remand, Zujua moved to be awarded attorney‟s fees under D.C.

Code § 16-5504 (a), which provides that “[t]he court may award a moving party

who prevails, in whole or in part, on a motion brought under . . . § 16-5503 the

costs of litigation, including reasonable attorney fees.” In response, attorney Burke

argued mainly that the trial court in its discretion (“[t]he court may award . . .

attorney fees”) should award no fees in the circumstances of the case. The trial

judge agreed and denied the fee request entirely.4 He concluded first that

attorney‟s fees were unjustified because Ms. Burke had not filed “a classic SLAPP

suit” against Zujua, one “within the meaning of the D.C. [Anti-SLAPP] statute.”

4
When the judge denied the fee request, Ms. Burke‟s suit against all of the
defendants, including Zujua, was still pending. Her subsequent voluntary
dismissal of the entire action removes any basis for her present, half-hearted
contention that we lack jurisdiction to review the denial of the fee award. See, e.g.,
Anderson v. United States, 754 A.2d 920, 922-23 (D.C. 2000); see also Purcell v.
Thomas, 28 A.3d 1138, 1141 (D.C. 2011) (noting separate appealability of
“judgment disposing of the merits” and “decision regarding attorney fees”).
 6

Citing legislative history corresponding to this court‟s recognition in Doe I that

SLAPP suits “masquerade as ordinary lawsuits” but in reality are used “as a

weapon to chill or silence speech,” Doe I, 91 A.3d at 1033 (citation and internal

quotation marks omitted), the judge found the plaintiff‟s suit to have none of the

earmarks of such an action: It “was not based on flimsy speculation and was not

intended to inflict costly litigation fees . . . as a means to stifle speech”; it could

“hardly be seen as frivolous” because it “set forth a plausible argument” for

believing that Zujua had acted maliciously; and “it is not unreasonable to surmise

that plaintiff filed what she believed to be a meritorious suit to recover for the harm

caused by the false statements made via anonymous Wikipedia edits.”

The judge reasoned further that, “even if an action is construed as a SLAPP

suit, attorneys‟ fees and costs are not automatic and may be recovered only upon a

showing that a frivolous claim has been made against defendants.” Exercising the

discretion he understood to be afforded him by the fee provision‟s “permissive

language,” he determined that because the plaintiff‟s suit, although unsuccessful,

had not been filed “with [the] intent to inflict costly litigation fees, bring a

frivolous suit, or . . . stifle speech,” attorney‟s fees were unjustified in light of “the

equities” of the case, “the aims of the D.C. Anti-SLAPP Act and the purpose for
 7

awarding fees,” and the findings of merit (or non-frivolousness) and proper

motivation the court had made regarding the underlying suit.5

II.

A.

For the trial judge, it is apparent, “a moving party who prevails” on a motion

to quash under § 16-5504 may not be awarded attorney‟s fees, presumptively or

otherwise, without consideration by the court of the merits of, and motive behind,

5
As one “equity” counting against a fee award, the judge cited website
indications that Zujua‟s attorneys, employed by an organization named the Center
for Individual Rights (the Center), in general “pursue this type of litigation to
further their own [institutional] self-interest and need no encouragement [through a
fee award] to do so.” In “protecting [Zujua‟s] right to anonymous free speech,”
which accorded with the Center‟s own stated “public policy positions,” Zujua‟s
“counsel ha[d] already achieved an award by succeeding in its own interest.”
Further counting against an award, in the judge‟s view, were representations the
judge found undisputed that Zujua had rejected a settlement offer by plaintiff
Burke “that would not require [Zujua] to reveal his identity.” Both of these matters
are discussed in part II. D., infra.

Having denied Zujua‟s request for attorney‟s fees entirely, the judge had no
occasion to consider the reasonableness of the fee amount requested. See part II.
E., infra.
 8

the underlying lawsuit. Only if the suit, besides having failed the test of § 16-5503

(b) (“likely to succeed on the merits”), has been determined to be frivolous or

intended to stifle speech by causing undue litigation costs is it one within the

“meaning” of the Act — a “classic SLAPP suit” — so as to justify the statutory

shift of the obligation to pay costs including attorney‟s fees to the plaintiff.

The threshold defect in this statutory reading is that nowhere does the Act

refer to or define a “classic” SLAPP suit, as distinct from one against which the

defendant may invoke the statute‟s protections after a threshold prima facie

showing. As explained above, the burden of maintaining the suit shifts to the

plaintiff once the defendant has made “a prima facie showing that the underlying

claim arises from an act in furtherance of the right of advocacy on issues of public

interest . . . .” D.C. Code § 16-5503 (b). A “claim” is defined as “any civil

lawsuit, claim, complaint, cause of action . . . or other civil judicial pleading. . . .”

Id. § 16-5501 (a) (emphasis added). Nothing in this language, or in the words of

the attorney‟s fee provision, § 16-5504 (a), implies that to qualify for fees the

anonymous defendant successful in quashing a subpoena must have resisted a

SLAPP claim “classic” or exemplary in nature, rather than one arising — solely

but pivotally — from the defendant‟s exercise of a special form of speech or
 9

advocacy. The protections of the Act, in short, apply to lawsuits which the D.C.

Council has deemed to be SLAPPs, and this court‟s ruling in Doe I that Zujua was

entitled to those protections settled the question of whether attorney Burke‟s suit fit

within the statutory meaning.

More important, however, than this illusory distinction the trial judge saw

between “classic” SLAPP suits and others is that the Act, by its terms, impliedly

but clearly rejects the additional showing of frivolousness or wrongful motivation

the judge required before a party who files a special motion to quash and prevails

may recover attorney‟s fees. The costs provision, D.C. Code § 16-5504, provides

in full:

(a) The court may award a moving party who prevails,
in whole or in part, on a motion brought under § 16-
5502[6] or § 16-5503 the costs of litigation, including
reasonable attorney fees.

(b) The court may award reasonable attorney fees and
costs to the responding party only if the court finds that a
motion brought under § 16-5502 or § 16-5503 is
frivolous or is solely intended to cause unnecessary

6
See note 2, supra.
 10

delay.

The distinction could hardly be clearer between when, to qualify for attorney‟s

fees, a party must show frivolousness or improper motive in the opponent‟s action,

and when not. Unlike the “moving party who prevails . . . on a motion,” “the

responding party” — the original plaintiff — may be awarded fees only if the court

finds a complete lack of merit or improper motivation in the special motion to

quash. This distinction between what the Council required in one of two

companion provisions but not the other must be assumed to be deliberate:

When the legislature uses a term or phrase in one . . .
provision but excludes it from another, courts do not
imply an intent to include the missing term in [the] . . .
provision where the term or phrase is excluded. Instead,
omission of the same provision from a similar section is
significant to show different legislative intent for the
two sections.

2A NORMAN SINGER & SHAMBIE SINGER, Sutherland Statutes and Statutory

Construction § 46.6 (7th ed. 2015). In the same vein, the Supreme Court has

stated:
 11

“[W]here Congress includes particular language in
one section of a statute but omits it in another section
of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the
disparate inclusion or exclusion”. . . . Had Congress
intended to restrict [the subsection in question to a
particularly meaning], it presumably would have done
so expressly as it did in the immediately following
subsection . . . . We would not presume to ascribe this
difference to a simple mistake in draftsmanship.

Russello v. United States, 464 U.S. 16, 23 (1983) (internal citations omitted;

emphasis added).

The Act‟s silence in not requiring the moving party on a special motion to

quash to show more than that it prevailed thus speaks eloquently as to the

Council‟s intent regarding entitlement to reasonable attorney‟s fees. In departing,

for example, from the traditional American Rule governing fees,7 the Act gives no

sign — as to prevailing movants — of retaining vestiges of the “bad faith

7
“[T]his jurisdiction follows the American Rule under which . . . every
party to a case shoulders its own attorneys‟ fees, and recovers from other litigants
only in the presence of statutory authority, a contractual arrangement, or certain
narrowly-defined common law exceptions . . . .” Oliver T. Carr Co. v. United
Techs. Commc’ns Co., 604 A.2d 881, 883 (D.C. 1992) (internal quotation marks
omitted).
 12

litigation” exception to that rule. Synanon Found., Inc. v. Bernstein, 517 A.2d 28,

37 (D.C. 1986). The Act similarly bears no resemblance in this regard to Anti-

SLAPP statutes such as New York‟s (relied on by the trial judge) that authorize a

fee-shift only where “the action involving public petition and participation was

commenced or continued without a substantial basis in fact and law” (or

“substantial argument” for change in law). N.Y. Civil Rights Law § 70-a (1)(a)

(McKinney 2011).8 In clear contrast to the responding party‟s eligibility for fees,

the Act imposes no requirement on a successful movant under § 16-5504 (a) to

show either of the twin facts relied on by the trial court — improper motive (bad

faith) or total lack of merit in the underlying suit — before reasonable attorney‟s

fees may be awarded.

From the text of the statute alone, therefore, we think it a fair inference that

8
The trial judge cited Rubel v. Daily News, LP, 2010 N.Y. Misc. LEXIS
4273, at *19-20 (N.Y. Sup. Ct. Aug. 26, 2010), which read § 70-a (1)(a) to mean
that “attorneys‟ fees and costs . . . may be recovered only upon a showing that a
frivolous claim has been made against defendants . . . .” New York is one of a
handful of states whose Anti-SLAPP statutes include no special motion to dismiss
or quash, and accordingly condition the defendant‟s entitlement to attorney‟s fees
on a showing of frivolousness (no “substantial basis in fact or law”) in the
underlying suit. See also, e.g., Del. Code Ann. tit. 10, § 8138 (a)(1) (West 2015).
 13

the D.C. Council intended the successful movant under § 16-5503 to be awarded

attorney‟s fees in the ordinary course, i.e., presumptively, on request. But the issue

is not wholly without uncertainty or ambiguity because, as the trial judge

emphasized, the legislature used the verb “may” to authorize the shift in fees; it

did not use “shall” or “must,” as it might have, and as a general rule “may”

connotes latitude or choice — in a word, discretion. See, e.g., In re Langon, 663

A.2d 1248, 1250 (D.C. 1995). We accordingly turn to the legislative history of the

Act for what guidance it may furnish in resolving this ambiguity concerning the

discretion § 16-5504 (a) affords the trial court.

B.

That history begins with the Long Title to Bill 18-893, the “Anti-SLAPP Act

of 2010,” which defines the purpose of the legislation as including: “to provide a

motion to quash attempts to seek personally identifying information; and to award

the costs of litigation to the successful party on a special motion.”9 “[I]n

9
D.C. Council, Committee on Public Safety and the Judiciary, Report on
Bill 18-893 at 26 (Nov. 18, 2010) (Committee Report) (emphasis added).
 14

determining the extent and reach of an Act of the legislature, the court should

consider not only the statutory language, but also the title.” Mitchell v. United

States, 64 A.3d 154, 156 (D.C. 2013) (citation omitted). The stated purpose here

indeed suggests that the Council meant for the trial court “to award” reasonable

fees in the ordinary course to the defendant successful in moving to quash.

That inference gains further strength from the Committee Report

accompanying Bill 18-893. In citing the threat to free expression posed by SLAPP

suits “over the past two decades” and the corresponding need for local Anti-

SLAPP legislation, the Committee recognized the substantial cost to defendants

(named or “unnamed”) of litigating SLAPP actions even equipped with the means

the Bill provided — special motions to dismiss or to quash — “to move

expeditiously, and equitably, to dispense [with] a SLAPP.” Committee Report at

1, 4. The Committee Report therefore repeatedly pairs the “substantive rights” the

Bill “extends to defendants in a SLAPP” with the authority granted the trial court

to award “the costs of litigation” to “the successful party of a special motion to

dismiss or . . . to quash.” Id. at 4, 6. And in providing for both — i.e., the right to

pursue an early end to the litigation, and related costs to the movant successful in

doing so — the Bill “closely mirrored” federal Anti-SLAPP legislation then
 15

pending before Congress,10 which unambiguously entitled a moving party who

prevails on a special motion to reasonable attorney‟s fees. Id. at 3-4.11 The fact

that the federal bill used “shall” to convey that meaning counts for little, in our

view: what matters is that the D.C. Council hewed closely to that statutory model

10
H.R. 4364, the “Citizenship Participation Act of 2009,” H.R. 4364, 111
Cong. (2009). H.R. 4364 was not enacted into law.

11
The attorney‟s fee provision of H.R. 4364 stated, in relevant part, as
follows:

SEC. 8. FEES AND COSTS.

(a) Attorney‟s Fees- The court shall award a moving
party who prevails on a special motion to dismiss or
quash the costs of litigation, including a reasonable
attorney‟s fee.

(b) Frivolous Motions and Removal- If the court finds
that a special motion to dismiss, special motion to
quash, or the removal of a claim under this Act is
frivolous or is solely intended to cause unnecessary
delay, the court may award . . . reasonable attorney‟s
fees and costs to the responding party.

The Committee Report also took note of the very large number of
states that had enacted Anti-SLAPP laws “creat[ing] a similar special motion
to dismiss.” The District‟s Bill was “[f]ollowing the lead” of these “other
jurisdictions” as well in both “extend[ing] substantive rights” and pairing
them with the allowance of costs and fees to “the successful party of a
special motion to dismiss or . . . quash.” Committee Report at 3-4.
 16

— and its clear distinction between the successful “moving” and “responding”

parties — in crafting the District‟s attorney‟s fee provision.12 Nothing in the

legislative history implies, by contrast, that the Council had in mind granting broad

or loosely constrained discretion to the trial court to award or deny attorney‟s fees

to a party prevailing on its special motion to quash.

C.

In light of all we have seen, it is plain to us that D.C. Code § 16-5504 (a)

contemplates a presumptive award of attorney‟s fees to the moving party who

12
Indeed, what may be termed “unofficial legislative history,” see Public
Invest. Ltd. v. Bandeirante Corp., 740 F.2d 1222, 1228 (D.C. Cir. 1984), not
disputed by attorney Burke, suggests how close the Council was to conforming the
District‟s fee provision exactly to federal Bill H.R. 4364. In email correspondence
before the second reading of the proposed law, the Committee Clerk of the
Council‟s Committee on Public Safety and the Judiciary asked two attorneys who
had had “great input” in the Bill before mark-up whether it should be amended to
say “shall award” costs, including attorney‟s fees. Arthur Spitzer of the American
Civil Liberties Union replied that other federal and District laws using “may” had
been construed to “make[] the fees all-but-mandatory in most cases,” but that a
“possible danger of using „shall‟ in the Anti-SLAPP law” was that courts would
take this to mean fee awards under other District fee-shift provisions were to be
“less automatic,” so that, in his view, “perhaps keeping „may‟ would be better.”
The Committee Clerk replied that “it is good to know there are valid reasons not to
go that route.”
 17

prevails on a special motion to quash under § 16-5503. In treating differently for

fee purposes the successful moving party (subsection (a)) and successful opponent

of the motion (subsection (b)), § 16-5504 is most naturally read as patterned after

existing laws that, while couching the authority to award fees in the permissive

verb “may,” distinguish similarly between prevailing plaintiffs and defendants, and

in the ordinary case call for an award of attorney‟s fees to the former on request.

The paradigmatic example of laws embodying that distinction are the federal Civil

Rights Acts, as interpreted in Newman v. Piggie Park Enters., 390 U.S. 400

(1968), and Christiansburg Garment Co. v. Equal Emp’t Opportunity Comm’n,

434 U.S. 412 (1978). Thus, whereas a prevailing plaintiff under Title II of the

Civil Rights Act of 1964 “should ordinarily recover an attorney‟s fee unless special

circumstances would render such an award unjust,” Newman, 390 U.S. at 402, the

trial court may “award attorney‟s fees to a prevailing defendant in a . . . case [under

Title VII of the Civil Rights Act only] upon a finding that the plaintiff‟s action was

frivolous, unreasonable, or without foundation.” Christiansburg, 434 U.S. at 421;

see also Hughes v. Rowe, 449 U.S. 5, 14 (1980) (per curiam). The parallel to D.C.

Code § 16-5504 is apparent when we replace the Newman/Christiansburg

distinction with the contrast between “a moving party who prevails” on a special

motion and “the responding party.” Cf. Fogerty v. Fantasy, Inc., 510 U.S. 517,
 18

521-22 (1994) (rejecting circuit court rule under the Copyright Act of 1976 that

“prevailing plaintiffs are generally awarded attorney‟s fees as a matter of course,”

in part because “[t]he statutory language . . . gives no hint that successful plaintiffs

are to be treated differently from successful defendants”).

Furthermore, although the Newman/Christiansburg distinction favoring

prevailing plaintiffs rests on what the Supreme Court “found to be the important

policy objectives of the Civil Rights statutes,” id. at 523, it would be wrong to

slight the policy concerns similarly underlying the Anti-SLAPP Act‟s provision for

a special motion to quash and the corresponding fee distinction favoring successful

movants. “The right the Council sought to protect with the special motion to

quash,” we stated in Doe I, supra, “is the right to engage in anonymous speech,” a

“constitutional right” underscoring the “substantial public interest” the Council

saw in protecting “the intended targets of SLAPP actions.” 91 A.3d at 1039

(internal quotation marks omitted); see also Committee Report, supra note 9, at 1,

3 (pointing to the “chilling effect [of SLAPP suits] on the exercise of

constitutionally protected rights,” particularly speech involving “the kind of

grassroots activism that should be hailed in our democracy”). While it is too much

to equate the successful movant under D.C. Code § 16-5503 with the prevailing
 19

Civil Rights Act plaintiff, “the chosen instrument of Congress to vindicate a policy

that Congress considered of the highest priority,” Christiansburg, 434 U.S. at 418

(internal quotation marks omitted), still the Council‟s concern to protect SLAPP

targets “engag[ed] in political or public policy debates,” Committee Report at 4, by

special motions and related reimbursement for litigation costs strongly suggests its

intent to define the court‟s discretion as to fee awards in the same way as do

federal laws protecting basic rights.13

In Tenants of 500 23rd Street, N.W. v. District of Columbia Rental Hous.

Comm'n, 617 A.2d 486 (D.C. 1992), this court read the attorney‟s fee provision of

the District‟s Rental Housing Act to embody the Newman/Christiansburg

distinction, and “as entitling prevailing tenants to a presumptive award of

attorney‟s fees.” Id. at 488 (citing Newman, 390 U.S. at 402). We now read D.C.

13
An unsuccessful motion to quash under § 16-5503, by contrast, does not
implicate the strong protective concerns underlying the special motion: the
defendant‟s speech will not have been shown to “arise[] from an act in furtherance
of the right of advocacy on issues of public interest,” or the plaintiff will have
shown a likelihood that the speech was “malicious,” so as to largely trump First
Amendment concerns. D.C. Code § 16-5502 (b). That is why, contrary to Judge
McLeese‟s view, post at 36, it is not “counterintuitive” for the statute to deny a
presumptive fee award to the defendant forced to litigate to verdict or even
summary judgment before prevailing.
 20

Code § 16-5504 (a) in similar fashion: it entitles the moving party who prevails on

a special motion to quash to a presumptive award of reasonable attorney‟s fees on

request, “unless special circumstances would render such an award unjust.”

Christiansburg, 434 U.S. at 416-17.

D.

No such 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. See Evans v. Jeff D., 475

U.S. 717, 730-32 (1986) (analyzing similar statutory language as demonstrating

that the legislature had not “bestowed fee awards upon attorneys,” but on the

“prevailing party”) (emphasis in original). Nor is it material that Zujua‟s attorneys

(the Center) represented him pro bono before requesting fees on his behalf. See
 21

Blum v. Stenson, 465 U.S. 886, 894 (1984) (holding that “Congress did not intend

the calculation of fee awards [in federal civil rights actions] to vary depending on

whether plaintiff was represented by private counsel or by a nonprofit legal

services organization”); Link v. District of Columbia, 650 A.2d 929, 934 (D.C.

1994).

It likewise cannot count, as a circumstance making a fee award “unjust,”

Christiansburg, 434 U.S. at 417, that Zujua rejected a settlement offer attorney

Burke had made after filing the suit and seeking to learn Zujua‟s identity. Aside

from this court‟s past rejection of the admissibility of settlement negotiations in a

trial court‟s resolution of attorney‟s fee disputes, see Lively v. Flexible Packaging

Ass’n, 930 A.2d 984, 994 (D.C. 2007),14 the record terms of the settlement

proposed here are much too ambiguous to support Ms. Burke‟s assertion that,

rather than “easily resolve[]” the “entire dispute,” Zujua “prefer[red] instead to

14
Ms. Burke argues that her use of Zujua‟s refusal to settle as a “shield”
against a fee request, rather than a “sword,” was consistent with Fed. R. Evid. 408,
cited in Lively. But the federal rule precludes the admission of evidence of
“conduct or a statement made during compromise negotiations about [a] claim” to
“either . . . prove or disprove the validity . . . of [the] . . . claim . . . .” Fed. R. Evid.
408 (a) (emphasis added). Burke undeniably was seeking to “disprove” Zujua‟s
entitlement to fees.
 22

litigate” and incur unnecessary litigation costs (Br. for Appellee at 2, 22). Zujua

sought to end the litigation (as to it) at the earliest possible stage via a special

motion to quash. Ms. Burke, by contrast,

was on notice from the time [that] motion was filed that
[Zujua] believed her lawsuit was a SLAPP. The fee-
shifting provision is plain on the face of the Anti-SLAPP
statute. Had Ms. Burke wished to minimize her potential
exposure to a fee award, she could have dismissed her
lawsuit at any time, rather than continue after [Zujua]
rejected her settlement offer.

Brief for Amicus Curiae at 21-22.

E.

In light of the trial judge‟s refusal to award attorney‟s fees altogether, he did

not reach Ms. Burke‟s summary challenge to the reasonableness of the amount of

fees Zujua was requesting. Despite the largely conclusory nature of that

challenge,15 we elect to remand the case to the trial judge to evaluate the

15
Ms. Burke asserted, for example, that the requested fee amount was
(continued…)
 23

reasonableness of the award requested — a request, we add, that was necessarily

augmented by the costs of litigating the initial appeal in this case. The trial court

will also have to assess the reasonableness of the fee amount that Zujua has

indicated it will seek for attorney work subsequent to the original fee request —

so-called “fees on fees.” Given the already protracted nature of the litigation, this

court may be forgiven for expressing the hope that an accommodation between the

parties will spare the trial court these remaining tasks.

Reversed and remanded.

__________________
(…continued)
“unreasonable on its face” given that “[t]his lawsuit did not result in extensive
work, such as reviewing voluminous documents, taking and defending depositions,
and going to trial”; and that “[t]he Center devoted all three of its lawyers to this
case and then billed for a significant number of meetings amongst themselves.”
 24

MCLEESE, J., concurring in part and dissenting in part: I agree that the trial

court‟s order denying attorney‟s fees to Mr. Doe should be vacated. I write

separately because my reasoning differs from the court‟s reasoning in several

significant respects.

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.

I.

A. Statutory Language.

The Act provides that trial courts “may” award attorney‟s fees to successful

movants. D.C. Code § 16-5504 (a) (2015 Supp.). As the court acknowledges,

“[u]se of the word „may‟ in a statute ordinarily denotes discretion.” In re Langon,

663 A.2d 1248, 1250 (D.C. 1995) (interpreting word “may” as “manifest[ing] a
 25

legislative intent to confer upon the trial court considerable discretion”); see also,

e.g., In re J.D.C., 594 A.2d 70, 75 (D.C. 1991) (“[T]he word „may‟ . . . is

quintessentially permissive.”); Martin v. Franklin Capital Corp., 546 U.S. 132,

136 (2005) (“The word „may‟ clearly connotes discretion.”) (brackets and internal

quotation marks omitted); Haig v. Agee, 453 U.S. 280, 294 n.26 (1981) (“„[M]ay‟

expressly recognizes substantial discretion.”). In interpreting section 16-5504 (a),

we must give significant weight to the ordinary meaning of “may.” See, e.g.,

Zukerberg v. District of Columbia Bd. of Elections & Ethics, 97 A.3d 1064, 1073

(D.C. 2014) (“We construe the words of the statute according to their ordinary

sense and with the meaning commonly attributed to them.”) (brackets, ellipses, and

internal quotation marks omitted); Flores v. United States, 37 A.3d 866, 868 (D.C.

2011) (in absence of statutory definition, “we presumptively accord [statutory

terms] their ordinary meaning in common usage, taking into account the context in

which they are employed”) (internal quotation marks omitted).

It is true that “may” sometimes can be interpreted to mean “shall” or

“presumptively shall.” See, e.g., In re Langon, 663 A.2d at 1250 (“[T]he meaning

of the word „may‟ in a particular statute depends on the context of the statute, and

on whether it is fairly to be presumed that it was the intention of the legislature to
 26

confer a discretionary power or to impose an imperative duty . . . .”) (internal

quotation marks omitted); Christiansburg Garment Co. v. EEOC, 434 U.S. 412,

417 (1978) (holding that civil-rights statute providing that court “may” award

attorney‟s fees to prevailing plaintiff requires fee award “in all but special

circumstances”). Because such interpretations are inconsistent with the ordinary

meaning of “may,” however, we should not adopt them lightly. Rather, we should

do so only if we are confident that is what the legislature intended. Cf., e.g., Minor

v. Mechanics Bank, 26 U.S. 46, 64 (1828) (Story, J.) (although “may” can be

interpreted as “must,” “[t]he ordinary meaning of the language[] must be presumed

to be intended, unless it would manifestly defeat the object of the provisions”). I

lack confidence that the Council intended, by using the word “may,” to

presumptively require a fee award to successful movants under the Act.

B. Statutory Structure.

As the court points out, a party who successfully opposes an Anti-SLAPP

Act motion may be awarded fees only if the motion was “frivolous or . . . solely

intended to cause unnecessary delay.” D.C. Code § 16-5504 (b). No such

limitation is imposed on fee awards to successful movants. D.C. Code
 27

§ 16-5504 (a). I agree with the court that this difference “impliedly but clearly

rejects” the view that fee awards to successful movants could properly be limited

to cases in which the respondent‟s position was frivolous or taken in bad faith.

The court goes further, though, and infers from this difference “alone” that

successful movants should presumptively be awarded fees. I see no basis for this

further inference. Rather, the structure of section 16-5504 is entirely consistent

with a conclusion that trial courts have discretion whether to award fees to

successful movants. The Second Circuit has reached the same conclusion under 15

U.S.C. § 3611 (2014), which has a structure quite similar to that of D.C. Code

§ 16-5504. See 305 E. 24th Owners Corp. v. Parman Co., 994 F.2d 94, 96 (2d Cir.

1993) (per curiam) (under 15 U.S.C. § 3611(d), relief “may include” reasonable

attorney‟s fees, but defendant may recover fees only if plaintiff‟s action was

“frivolous, malicious, or lacking in substantial merit”; court concludes that whether

to award fees to prevailing plaintiff was “within the discretion of the court”); 605

Park Garage Assocs., LLC v. 605 Apartment Corp., 412 F.3d 304, 306 (2d Cir.

2005) (per curiam) (affirming denial of fees to prevailing plaintiff under 15 U.S.C.

§ 3611(d) as within trial court‟s discretion to award fees when doing so would be

“fair, just and equitable”) (internal quotation marks omitted).
 28

The Second Circuit‟s interpretation of 15 U.S.C. § 3611 contradicts the

reasoning of the court in this case. Closer to home, this court recently analyzed the

fee provision in the District of Columbia Freedom of Information Act, D.C. Code

§ 2-537 (c) (2015 Supp.), which provides that prevailing plaintiffs “may” be

awarded fees but does not provide for an award of fees to prevailing defendants.

Fraternal Order of Police, Metro. Police Dep’t Labor Comm. v. District of

Columbia, 52 A.3d 822 (D.C. 2012) (“FOP”). Under the approach adopted by the

court in the present case, the provision at issue in FOP should have been viewed as

ordinarily calling for an award of fees to prevailing plaintiffs. The court in FOP

made no reference to such a principle. To the contrary, the court held that both

“the plain language of the statute” and the applicable legislative history

demonstrated that “„may‟ ha[d] its ordinary permissive meaning.” 52 A.3d at 827-

28.

In support of the statement that fee provisions with a structure like that of

section 16-5504 call in the ordinary course for an award of attorney‟s fees to

prevailing plaintiffs, the court cites as a “paradigmatic example” the fee provisions

in federal civil-rights statutes. In reality, however, the Supreme Court concluded

that prevailing plaintiffs should presumptively be awarded fees under the civil-
 29

rights statutes not because of the structure of the fee provisions in those statutes but

rather because successful civil-rights plaintiffs act as private attorneys general,

“vindicating a policy that Congress considered of the highest priority.” Newman v.

Piggie Park Enters., 390 U.S. 400, 402 (1968) (per curiam); see also

Christiansburg, 434 U.S. at 418 (fees should presumptively be awarded to

prevailing plaintiff under civil-rights statute based on “two strong equitable

considerations”: prevailing plaintiff “is the chosen instrument of Congress to

vindicate a policy that Congress considered of the highest priority” and “when a

district court awards counsel fees to a prevailing plaintiff, it is awarding them

against a violator of federal law”) (internal quotation marks omitted). As I explain

later in this opinion, a successful Anti-SLAPP Act movant is not in these respects

comparable to a plaintiff who has prevailed in establishing that the defendant

violated the federal civil-rights laws.

C. Legislative History.

The court concludes that “[n]othing in the legislative history implies . . . that

the Council had in mind granting broad or loosely constrained discretion to the trial

court to award or deny attorney‟s fees” to a successful movant. In my view,
 30

however, the legislative history on balance points in favor of the conclusion that

the legislature meant “may” to be understood in its usual sense of conferring

discretion. The strongest indications appear in the applicable committee report.

We have found committee reports to be particularly persuasive evidence of

legislative intent. Cf., e.g., Board of Trs. of Univ. of District of Columbia v. Joint

Review Comm. on Educ. in Radiologic Tech., 114 A.3d 1279, 1285 (D.C. 2015)

(“[T]he report of a Senate or a House committee[] is accorded a good deal more

weight than the remarks even of the sponsor of a particular portion of a bill on the

floor of the chamber.”) (internal quotation marks omitted).

The applicable committee report at one point refers to the Act as

“[p]rovid[ing] for the awarding of fees” to successful movants. D.C. Council,

Report on Bill 18-893 at 8 (Nov. 18, 2010). That reference does not shed light on

whether the Council intended such awards to be discretionary or presumptively

mandatory. Two other statements in the committee report, however, speak more

directly to that question, describing the Act as “allow[ing]” for an award of fees to

successful movants. Id. at 4, 6. As the Supreme Court of Colorado observed when

interpreting a constitutional amendment that “allowed” reasonable attorney‟s fees

to successful plaintiffs, “[d]ictionary definitions of the common usage of „allow‟
 31

. . . are synonymous with the word „permit.‟” City of Wheat Ridge v. Cerveny, 913

P.2d 1110, 1114 (1996) (construing amendment to give trial courts discretion as to

whether to award fees to prevailing plaintiffs). The committee report on the Act

thus indicates that the Council intended to give trial courts discretion as to whether

to award fees to a successful movant. Moreover, the language of the committee

report in no way suggests that the Council intended to make fee awards to

prevailing movants presumptively mandatory.

In concluding that the legislative history of the Act supports a conclusion

that fee awards to successful movants are presumptively mandatory, the court

relies on two main points. First, the court relies on the Act‟s long title, which lists

among the Act‟s purposes “to award the costs of litigation to the successful party

on a special motion.” It is appropriate to consider a statute‟s title when interpreting

the statute. Mitchell v. United States, 64 A.3d 154, 156 (D.C. 2013). Nevertheless,

“[t]he significance of the title of the statute should not be exaggerated.” Id.; see

also, e.g., Brotherhood of R.R. Trainmen v. Baltimore & Ohio R.R., 331 U.S. 519,

528 (1947) (“Th[e] heading is but a short-hand reference to the general subject

matter involved. . . . [H]eadings and titles are not meant to take the place of the

detailed provisions of the text. Nor are they necessarily designed to be a reference
 32

guide or a synopsis. Where the text is complicated and prolific, headings and titles

can do no more than indicate the provisions in a most general manner; to attempt to

refer to each specific provision would often be ungainly as well as useless. As a

result, matters in the text which deviate from those falling within the general

pattern are frequently unreflected in the headings and titles.”). The Act‟s title

refers to fee awards to successful movants but does not specify whether such fees

must always be awarded or, if not, whether such awards should be presumptive or

instead discretionary. Thus, the Act‟s title appears to be a shorthand reference

rather than a reliable indication of the precise meaning of the Act‟s fee provision.

Second, the court notes the committee report‟s observation that the Act

“closely mirrored” then-pending federal Anti-SLAPP legislation.1 As the court

1
Mr. Doe interprets the committee report as stating that the fee-shifting
provision of the Act mirrored fee-shifting provisions in other federal statutes. I do
not read the committee report that way. Rather, although the committee report at
one point refers imprecisely to the pending federal legislation as “federal law,”
both references in the committee report in context indicate that the Council was
mirroring other Anti-SLAPP provisions, not fee-shifting provisions in previously
enacted federal statutes. Report at 1 (Act “follows the model set forth in a number
of other jurisdictions, and mirrors language found in federal law, by incorporating
substantive rights that allow a defendant to more expeditiously, and more
equitably, dispense of a SLAPP”), 4 (Act “closely mirrored the federal legislation
introduced” in 2009).
 33

acknowledges, however, the attorney‟s fee provision in the Act does not mirror the

attorney‟s fee provision in the pending federal legislation. To the contrary, the

pending federal legislation used explicitly mandatory language, providing that the

trial court “shall” award attorney‟s fees to a successful movant. Citizen

Participation Act, H.R. 4364, 111th Cong. § 8(a) (2009). It would be natural to

infer that, by choosing explicitly permissive language, rather than the mandatory

language of the pending federal legislation, the Council was intentionally rejecting

the mandatory approach reflected in the pending federal legislation, in favor of a

discretionary approach. Cf., e.g., Rea v. Federated Inv’rs, 627 F.3d 937, 940 (3d

Cir. 2010) (where later legislation was modeled on earlier legislation, “any

differences between the two are a result of Congress acting intentionally and

purposefully”); cf. generally Russello v. United States, 464 U.S. 16, 23-24 (1983)

(“Where Congress includes particular language in one section of a statute but omits

it in another section of the same Act, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or exclusion.”; “Where

Congress includes limiting language in an earlier version of a bill but deletes it

prior to enactment, it may be presumed that the limitation was not intended.”)

(brackets omitted).
 34

Finally, the court mentions in a footnote an email exchange between a

Council staff member and a witness who testified in support of the Act. In my

view, the court appropriately places little weight on that email exchange. Cf., e.g.,

In re Kline, 113 A.3d 202, 209 n.3 (D.C. 2015) (in interpreting court rule, court

notes that letter from Department of Justice official to court rules committee

“sheds no light on the thinking of the decision makers and, therefore, must be

viewed with some skepticism. . . . Moreover, evidence which is of little probative

value should not control over the customary meaning of the words used in the rule

and the comment.”); People v. Patterson, 84 Cal. Rptr. 2d 870, 873 (Ct. App.

1999) (declining to consider “private communications by a legislative staffer” in

interpreting statute).

D. Analogy to Federal Civil-Rights Statutes.

As previously noted, the court suggests that the Act‟s fee provision is

analogous to the fee provisions in certain federal civil-rights statutes, which use

discretionary language but have nevertheless been interpreted to presumptively

require fee awards to prevailing plaintiffs. See Christiansburg, 434 U.S. at 417;

Newman, 390 U.S. at 402; see also Tenants of 500 23rd St., N.W. v. District of
 35

Columbia Rental Hous. Comm’n, 617 A.2d 486, 487-88 (D.C. 1992) (because they

act as “private attorneys general,” tenants prevailing in actions brought under

Rental Housing Act are presumptively entitled to fee award under D.C. Code § 42-

2592 (1990) (now codified at D.C. Code § 42-3509.02 (2012 Repl.)), which

provides that court “may award” fees to prevailing party). I view this analogy as

strained.

The Supreme Court has identified two primary rationales for presumptively

requiring an award of fees to prevailing plaintiffs under the federal civil-rights

statutes: (1) such plaintiffs serve as private attorneys general, and (2) the

defendants in such cases violated federal law. Martin, 546 U.S. at 137 (trial courts

have discretion as to whether to award fees if case that was initially removed from

state to federal court is subsequently remanded back to state court pursuant to

28 U.S.C. § 1447(c) (2014); making fee award presumptive was unwarranted

because successful litigant was not private attorney general and did not establish

violation of federal law). We emphasized similar rationales when we held that

prevailing tenants are presumptively entitled to a fee award under the Rental

Housing Act. See Tenants of 5300 23rd St., N.W., 617 A.2d at 488; Hampton Cts.

Tenants’ Ass’n v. District of Columbia Rental Hous. Comm’n, 573 A.2d 10, 11-13
 36

(D.C. 1990). I am doubtful that either rationale applies to motions filed under the

Anti-SLAPP Act.

I do not deprecate the free-speech interests that can be protected by a

successful motion under the Act. But it is not clear to me that successful movants

are properly viewed as serving as private attorneys general. There is no reference

to that idea in the legislative history of the Act, and the court in the present case

does not suggest that successful movants should be viewed as private attorneys

general. Moreover, a successful movant does not establish that the respondent

violated any law, federal or local. Rather, such a movant establishes only that the

plaintiff‟s underlying lawsuit arises from an act of advocacy on a matter of public

interest and that the plaintiff was unable to make a pretrial showing of likely

success on the merits. D.C. Code §§ 16-5502, -5503 (2015 Supp.).

In my view, the procedural character of motions under the Act tends to

weaken the view that fee awards to successful movants should be presumptively

mandatory. For example, imagine a libel defendant who is sued for speaking out

on a matter of public concern, but who is unable to prevail in a pretrial

Anti-SLAPP Act motion. Imagine further that the defendant nevertheless
 37

ultimately persuades a factfinder that the plaintiff‟s suit was not meritorious.

Barring bad faith or other unusual circumstances, such a defendant has no right to

attorney‟s fees. It seems somewhat counterintuitive to construe the Act as

presumptively mandating a fee award to defendants who can prevail pretrial, given

that defendants who prevail after a trial will only be eligible for a fee award in

unusual circumstances. The court responds that a plaintiff who successfully

opposes an Anti-SLAPP Act motion in a case involving public advocacy “will

have shown a likelihood that the speech was „malicious,‟ so as to largely trump

First Amendment concerns.” The court does not explain, however, why a

plaintiff‟s simply making a pretrial showing of likely success on the merits

“largely trump[s]” First Amendment concerns, even where the defendant

ultimately persuades the jury that the speech at issue could not under the First

Amendment be the basis for a libel award.

E. Anti-SLAPP Statutes in Other Jurisdictions.

The committee report concerning the Act noted that, as of January 2010,

approximately twenty-eight other jurisdictions had adopted Anti-SLAPP statutes.

Report at 3. The report also indicated that the Act “follows the model set forth in a
 38

number of other jurisdictions.” Id. at 1. On the issue of fee awards, however, the

Act is worded quite differently from most other Anti-SLAPP statutes. Most

Anti-SLAPP statutes explicitly make fee awards to successful movants mandatory,

typically using the word “shall.” See, e.g., Cal. Civ. Proc. Code § 425.16(c) (West,

Westlaw through ch. 1 2016 Reg. Sess. & ch. 1 2015-2016 2d Ex. Sess.); Fla. Stat.

Ann. § 768.295(4) (West, Westlaw through 2015 1st Reg. Sess. & Special A

Sess.); 735 Ill. Comp. Stat. Ann. § 110/25 (West, Westlaw through P.A. 99-500

2015 Reg. Sess.). Several Anti-SLAPP statutes, however, explicitly limit fee

awards to specific circumstances, such as when the plaintiff‟s suit lacked a

substantial basis. See, e.g., Del. Code Ann. tit. 10, § 8138(a)(1) (West, Westlaw

through 80 Laws 2015, ch. 194); N.Y. Civ. Rights Law § 70-a(1)(a) (McKinney,

Westlaw through chs. 1-589 2015). I have located only one Anti-SLAPP statute

that uses language similar to the pertinent language in the fee provision of the

District‟s Anti-SLAPP Act. See Me. Rev. Stat. Ann. tit. 14, § 556 (West, Westlaw

through 2015 1st Reg. Sess.) (court “may award” fees to successful movant). That

statute has been interpreted by the Maine Supreme Court to give trial courts

discretion as to whether to award fees, not to require that fees be presumptively

awarded. See Maietta Constr., Inc. v. Wainwright, 847 A.2d 1169, 1174-76 (2004)

(holding that language of provision clearly confers discretion; court refuses to
 39

“infer a presumption of attorney fees in the face of a permissive statutory grant”).

I note, however, that the decision in Maietta rests in part on Maine‟s rejection, as a

matter of local law, of the approach taken by the Supreme Court with respect to fee

awards under federal civil-rights statutes. Id. at 1176. This court, by contrast, has

followed the Supreme Court‟s approach as a matter of local law. See, e.g., Tenants

of 5300 23rd St., N.W., 617 A.2d at 487-88.

I draw two principal conclusions from the approaches taken by other

jurisdictions. First, legislatures have taken various views on whether, as a matter

of policy, fee awards to successful Anti-SLAPP Act movants should be mandatory

or available only in more limited circumstances. Second, when the Council

enacted the fee provision of the District‟s Anti-SLAPP Act, it had numerous

models to consider. The Council did not adopt either of the two most common

models: making fee awards mandatory or making them available only in specified

circumstances. Rather, it picked language that, most naturally understood, charts a

middle course, leaving to the discretion of trial judges whether to awards fees to

successful Anti-SLAPP Act movants. Under well-settled principles of statutory

interpretation, we should infer that the Council‟s choice was intentional. See, e.g.,

Russello, 464 U.S. at 23; Rea, 627 F.3d at 940.
 40

F. Conclusion.

In sum, I view the language of the Act‟s fee provision as pointing in favor of

the conclusion that trial judges have discretion whether to award fees to successful

Anti-SLAPP Act movants. The other tools of statutory interpretation, considered

as a whole, on balance point in the same direction. I therefore would so hold.

II.

Although I do not agree with the court that a fee award here was

presumptively mandatory rather than discretionary, I nevertheless agree with the

court that the trial court‟s order denying a fee award should be vacated.

Specifically, I agree with the court that the trial court placed undue emphasis on

the conclusions that Ms. Burke‟s suit was not frivolous or brought in bad faith. I

also agree with the court that the trial court erred by placing weight on the fact that

Mr. Doe was represented pro bono by an advocacy group. I assume arguendo that

settlement negotiations might in some circumstances be admissible in determining

whether to award attorney‟s fees. But cf. Lively v. Flexible Packaging Ass’n, 930

A.2d 984, 994 (D.C. 2007) (statement made during settlement negotiations not
 41

admissible in determining amount of attorney‟s fees). Even on that assumption, I

agree with the court‟s suggestion that Ms. Burke‟s settlement offers were too

ambiguous to provide significant support for a decision to deny a fee award. In

particular, Ms. Burke‟s offers appear to have been contingent on (1) Mr. Doe‟s

waiver of any claim for fees and (2) an unspecified enforcement mechanism that

might permit the suit to be unilaterally reinstated by Ms. Burke.

In some contexts, this court has adopted specific tests to govern a trial

court‟s discretionary determination whether to award fees. See, e.g., FOP, 52 A.3d

at 828-32 (four-factor test for fee awards under D.C. Freedom of Information Act);

Sanders v. International Soc’y for Performance Improvement, 740 A.2d 34, 35 n.4

(D.C. 1999) (adopting federal test governing fee awards under federal Employee

Retirement Income Security Act); Frazier v. Franklin Inv. Co., 468 A.2d 1338,

1341 (D.C. 1983) (twelve-factor test for fee awards under Truth in Lending Act);

Ritz v. Ritz, 197 A.2d 155, 156-57 (D.C. 1964) (non-exhaustive list of factors

applicable to fee awards in domestic-relations cases). Neither this court nor any

other of which I am aware has yet developed such a test applicable to fee requests

submitted by successful Anti-SLAPP Act movants. The parties have not briefed

the question whether this court should adopt such a test and, if so, what that test
 42

should look like. I therefore would not be inclined to attempt to address those

questions in the first instance. Rather, I would simply vacate the trial court‟s order

denying a fee award and remand for a “reasoned exercise of the court[‟s]

discretion.” FOP, 52 A.3d at 828 (internal quotation marks omitted). I therefore

respectfully concur in part and dissent in part.