American Studies Association v. Bronner

Notice: This opinion is subject to formal revision before publication in the
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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 19-CV-1222

AMERICAN STUDIES ASSOCIATION, ET AL., APPELLANTS,

V.

SIMON BRONNER, ET AL., APPELLEES.

Appeal from the Superior Court
of the District of Columbia
(CAB-1712-19)

(Hon. Robert R. Rigsby, Trial Judge)

(Argued May 11, 2021 Decided September 30, 2021)

Thomas C. Mugavero for appellants the American Studies Association,
Duggan, Marez, Tadiar, Maira, Reddy, and Stephens.
Maria C. Lahood, with whom Astha Sharma Pokharel and Shayana D.
Kadidal were on the brief, for appellant Salaita.
Mark Kleiman for appellant Puar.
Jerome M. Marcus, with whom Jennifer Gross, Joel Friedlander, and Eric D.
Roiter were on the brief, for appellees.
Radhika Sainath, in support of appellants, for amicus curiae Palestine Legal.
Laura C. Regan, Marco Simons, and Rebecca Chapman, in support of
appellants, for amicus curiae Members of the “Protect the Protest” Task Force.
Baruch Weiss and Graham W. White, in support of appellees, for amicus
curiae Scholars for Peace in the Middle East.
Don Padou, amicus, in support of neither side.
 2

Before GLICKMAN, EASTERLY, and DEAHL, Associate Judges.

GLICKMAN, Associate Judge: This interlocutory appeal is from the Superior

Court’s denial of a “special motion to dismiss” under the Anti-Strategic Lawsuits

Against Public Participation (“Anti-SLAPP”) Act. 1 The appeal requires us to

construe certain of the statutory requirements governing such motions.

Broadly speaking, the term SLAPP is used to refer to “an action filed by one

side of a political or public policy debate aimed to punish or prevent opposing points

of view.” 2 The Anti-SLAPP Act provides procedural mechanisms to thwart such

suits. One of those mechanisms is a special motion to dismiss SLAPP claims with

prejudice at the outset of the litigation with minimal or no discovery, “as soon as

practicable” after an expedited hearing. 3 If the trial court grants the motion, it may

award the costs of litigation, including reasonable attorney fees, to the movant. 4

1
D.C. Code §§ 16-5501 to -5505 (2012 Repl.).
2
Competitive Enter. Inst. v. Mann, 150 A.3d 1213, 1226 (D.C. 2016) (quoting
Council of the District of Columbia, Report of Committee on Public Safety and the
Judiciary on Bill 18-893, at 1 (Nov. 18, 2010) (“2010 Committee Report”)).
3
See D.C. Code § 16-5502(c), (d).
4
Id. § 16-5504(a).
 3

The Anti-SLAPP Act specifies the showing each party must make in the

litigation of a special motion to dismiss. The initial burden is on the movant to

“make[] a prima facie showing that the claim at issue arises from an act in

furtherance of the right of advocacy on issues of public interest.” 5 The burden then

shifts to the responding party to “demonstrate[] that the claim is likely to succeed on

the merits.” 6 The disputed issues in this appeal concern the interpretation of the

italicized words (“arises from” and “likely to succeed on the merits”) and whether

the parties shouldered their respective burdens.

Appellant American Studies Association (“ASA”) is a non-profit research

organization. In 2013, it formally adopted a resolution endorsing a boycott of Israeli

academic institutions (“2013 Resolution”). Appellees were ASA members at or

around that time. They filed the instant lawsuit in Superior Court against the ASA

and several of its officers, directors, and other members (who now are appellants

along with the ASA). In the interest of clarity, we shall frequently refer to appellants

5
Id. § 16-5502(b) (emphasis added). As we will discuss below, the term “act
in furtherance of the right of advocacy on issues of public interest” is defined by the
Anti-SLAPP Act to mean certain categories of public speech or expression. See id.
§ 16-5501(1).
6
Id. § 16-5502(b) (emphasis added).
 4

in this opinion as the “ASA defendants” (or just as the “defendants”); and we shall

refer to appellees as the “plaintiffs.”

The twelve-count complaint alleged various breaches of fiduciary duty, as

well as breaches of contract, tortious interference with contract, corporate waste, and

violations of the District’s Nonprofit Corporation Act. 7 The ASA defendants

responded to the complaint by filing a motion to dismiss pursuant to Superior Court

Civil Rule 12(b)(6) for failure to state claims upon which relief can be granted, and

a special anti-SLAPP motion to dismiss the lawsuit. In their 12(b)(6) motion, the

defendants argued that plaintiffs’ claims were time-barred, as well as precluded or

deficient for other reasons. In their anti-SLAPP motion, the defendants argued that

all the plaintiffs’ claims “arise, in one way or another” from the ASA’s 2013

Resolution, which was an “act in furtherance of the right of advocacy on issues of

public interest.”

Plaintiffs contested both motions. In response to the anti-SLAPP motion, they

argued that their claims did not “arise from” protected activity, but rather from

“specific non-speech acts that violated [d]efendants’ obligations to the ASA and its

7
D.C. Code §§ 29-401.01 to -414.04 (2013 Repl.).
 5

members, under principles of corporate, tort and contract law.” Plaintiffs also

argued that their claims were not barred or defective and were likely to succeed on

the merits.

The trial court granted the 12(b)(6) motion in part. It ruled that several counts

of the complaint were time-barred in whole or part but that the remaining counts

were not subject to dismissal for failure to state a claim on which relief could be

granted. The court denied the special motion to dismiss. It concluded the defendants

had made the necessary prima facie showing that the plaintiffs’ claims arose from

acts in furtherance of the right of advocacy, inasmuch as the claims all challenged

actions that were related in some way to the 2013 Resolution. Nonetheless, the court

also concluded that this fact did not entitle the defendants to relief under the Anti-

SLAPP Act because the plaintiffs had “demonstrated that a number of their claims

have merit.”

In the present interlocutory appeal, the ASA defendants ask us to reverse the

denial of their special motion to dismiss. They do not appeal the partial denial of

their 12(b)(6) motion. 8

8
Compare Mann, 150 A.3d at 1231 (holding that trial court’s denial of an
anti-SLAPP motion to dismiss is immediately appealable under the collateral order
doctrine), with District of Columbia v. Pizzulli, 917 A.2d 620, 624 (D.C. 2007)
 6

The ASA defendants argue that the trial court should have granted their anti-

SLAPP motion to dismiss the counts that fail to state a claim for relief because for

that very reason those counts are not “likely to succeed on the merits.” As to the

remaining counts of the complaint, the ASA defendants argue that the court erred in

failing to assess the likelihood of success of each claim individually and in merely

concluding that a number of the claims had merit. In response, the plaintiffs argue

that the standard for dismissal under Rule 12(b)(6) is “unrelated” to the anti-SLAPP

standard of likelihood of success on the merits, and that all their claims are

sufficiently meritorious to meet that standard. In the alternative, plaintiffs argue that

the special motion to dismiss was properly denied because their claims do not “arise

from acts in furtherance of public advocacy” of the ASA defendants within the

meaning of the Anti-SLAPP Act.

We hold that a claim is not “likely to succeed on the merits” within the

meaning of the Anti-SLAPP Act if the claim is subject to dismissal under Rule

12(b)(6), and we agree with the defendants that the court was required to determine

likelihood of success on a claim-by-claim basis. We further hold that for a claim to

“arise from” an act in furtherance of public advocacy, a party’s statutorily protected

(“[A]n order denying a motion to dismiss — typically a non-final order — is not
immediately appealable.”).
 7

activity must itself be the basis for that party’s asserted liability. In consequence of

these holdings, we vacate the denial of the special motion to dismiss and remand the

case to the Superior Court for further proceedings consistent with this opinion.

I. Background

A. The Parties

Appellant ASA is a non-profit organization, founded in 1951, that promotes

“the study of American culture through the encouragement of research, teaching,

[and] publication,” as well as “the strengthening of relations among persons and

institutions in this country and abroad devoted to such studies.” The ASA has been

incorporated in the District under the Nonprofit Corporation Act since 1971.

In 2013, the ASA had approximately 3,800 members. Regular ASA members

were required to pay dues in yearly installments. Members whose dues were six

months in arrears would be dropped from the rolls, but they could be “reinstated at

any time by the payment in advance of one year’s dues.” The ASA’s constitution

also provided for honorary members, who were exempt from paying dues. All ASA

members in good standing enjoyed “the right to vote and hold office in the

association.”
 8

The ASA’s leadership was made up of five officers: the president, the vice-

president, the executive director, the editor of the American Quarterly journal, and

the editor of the Encyclopedia of American Studies (“the Encyclopedia”). The

president and the vice-president were elected; the other three officers were

appointed. All five officers were members of the ASA’s board of directors, called

the National Council, but the appointed officers were non-voting (ex officio)

members. An Executive Committee implemented the National Council’s directives.

The ASA maintained a “Trust and Development Fund . . . to insure [sic] the

long-term financial stability of the association.” The ASA’s constitution provided

that the Fund “may also from time to time make grants in support of the projects,

activities, or prizes of the association.” Withdrawals from the Fund were

conditioned on “the request of at least two-thirds of the voting members of the

[National] Council approved by at least four members of the Board of Trustees.”

The Board of Trustees consisted of the ASA vice-president and four members

appointed by the ASA president “with the advice and consent” of the National

Council. The trustees were required to “direct the investment of the Fund’s

resources in a fiscally sound and socially responsible manner.”
 9

Except for appellant Steven Salaita, who did not join the ASA’s National

Council until 2015, the individual appellants all were ASA members in 2013. At

times relevant to the instant lawsuit, appellants Curtis Marez, Lisa Duggan, Sunaina

Maira, Kehaulani Kauanui, Chandan Reddy, and John Stephens were ASA officers

or held positions on the National Council and/or the Executive Committee. 9

Appellants Neferti Tadiar and Jasbir Puar served on committees within the ASA. 10

Several of the individual appellants also were involved with the United States

Association for the Academic and Cultural Boycott of Israel (“USACBI”). 11

USACBI was founded in 2009 as part of the larger “Boycott, Divestment, Sanctions”

Movement, commonly known by the acronym BDS. It lobbies organizations to

boycott Israeli academic and cultural institutions as a form of protest against the

state’s treatment of Palestinians.

Appellee Simon Bronner is a professor of American Studies, an honorary

ASA member, and a former editor of the Encyclopedia. In the latter capacity he was

9
Ms. Duggan succeeded Mr. Marez as ASA president in July 2014.
10
No member of the Board of Trustees was named in the complaint as a
defendant.
11
The complaint identifies these appellants as Ms. Tadiar, Ms. Maira, Ms.
Kauanui, Ms. Puar, and Mr. Salaita.
 10

also an ex officio member of the National Council. Mr. Bronner’s editorial contract

with the ASA expired on December 31, 2016, and it was not renewed. Mr. Bronner’s

co-plaintiffs, appellees Michael Rockland, Charles Kupfer, and Michael Barton,

were ASA members in or around 2013. 12 Mr. Barton had allowed his membership

to lapse for about a year beginning in 2012.

B. The 2013 Resolution

On November 25, 2013, the National Council approved the submission of a

proposed resolution to the ASA membership for a vote. The resolution was entitled

“Boycott of Israeli Academic Institutions.” Its operative language read:

It is resolved that the American Studies Association
(ASA) endorses and will honor the call of Palestinian civil
society for the boycott of Israeli academic institutions. It
is also resolved that the ASA supports the protected rights
of students and scholars everywhere to engage in research
and public speaking about Israel-Palestine and in support
of the boycott, divestment, and sanctions (BDS)
movement. 13

12
Mr. Rockland was an honorary member, while Mr. Kupfer and Mr. Barton
were regular members.
13
Boycott of Israeli Academic Institutions, AMERICAN STUDIES ASSOCIATION
(Dec. 4, 2013), https://www.theasa.net/about/advocacy/resolutions-
actions/resolutions/boycott-israeli-academic-institutions; https://perma.cc/PX3D-
8QRD.
 11

That same day, the National Council instructed Mr. Stephens, the ASA’s

executive director, to freeze the membership rolls of the ASA for twenty days. This

action prevented members whose dues were in arrears from being reinstated and

becoming eligible to vote during the ten-day voting period on the resolution. One

such member was Mr. Barton, who was unable to vote on the 2013 Resolution due

to the freeze.

The resolution was adopted on December 4, 2013. Out of 3,865 eligible ASA

members, 1,252 cast votes, with 827 in favor.

C. Mr. Bronner’s Editorial Contract

Mr. Bronner took over as the editor of the Encyclopedia in 2011. The ASA

paid him a yearly stipend of $8,500 for his services. Mr. Bronner’s five-year term

as editor was set to expire on December 31, 2016. In May 2015, appellant Duggan

(then the ASA president) contacted Mr. Bronner to inform him that the Executive

Committee was “finalizing a call for proposals” for a new editor of the Encyclopedia,

and that this process would “very definitely include[] soliciting [him] for another

term.” Mr. Bronner alleges that the Executive Committee never carried out this open

call for nominees; instead, he alleges, the Executive Committee privately offered the

editor’s position to Sharon Holland, a member of the National Council.
 12

The ASA announced that Ms. Holland would be the new editor of the

Encyclopedia in January 2017, after Mr. Bronner’s contract expired. The plaintiffs

allege that Mr. Bronner was effectively pushed out of the ASA and denied

reappointment as the editor of the Encyclopedia because of his opposition to the

2013 Resolution, that no work has been done on the Encyclopedia since his term

expired, and that his nominal successor, Ms. Holland, has not been paid the editor’s

stipend.

D. The Federal Lawsuit

Mr. Bronner and his co-plaintiffs initially filed a lawsuit against appellees in

the United States District Court for the District of Columbia, charging them with

breaches of fiduciary duty, breach of contract, corporate waste, and violations of the

Nonprofit Corporation Act. The District Court summarized the plaintiffs’

allegations as follows:

Plaintiffs allege that the Individual Defendants engaged in
improper conduct, in contravention of their duties to the
ASA and its members, and in violation of the ASA’s
bylaws and D.C. law, to ensure that the [2013] Resolution
was formally endorsed by the ASA. They also allege that
the Individual Defendants improperly utilized ASA funds
to defend the [2013] Resolution after its passage.
 13

Additionally, Plaintiffs allege . . . that, since the
Resolution, several members of the ASA have resigned in
protest, depriving the ASA of membership dues[,] . . . that
the ASA has experienced reputational harm because of the
reaction to the Resolution by the academic community and
the general public[,] . . . [and] that the ASA has suffered
financial harm because of an alleged decrease in donations
and an increase in public-relations and legal spending in
response to the public backlash resulting from the
Resolution. 14

In March 2017, the District Court dismissed the plaintiffs’ derivative claims

because they had not complied with the notice and demand requirements of the

Nonprofit Corporation Act. 15 Thereafter, in February 2019, the District Court

dismissed the entire case because plaintiffs could not meet the $75,000 amount in

controversy threshold necessary for diversity jurisdiction. 16 The D.C. Circuit

affirmed this ruling. 17

14
Bronner v. Duggan, 317 F. Supp. 3d 284, 287 (D.D.C. 2018) (Bronner II).
15
Bronner v. Duggan, 249 F. Supp. 3d 27, 44–47 (D.D.C. 2017) (Bronner I).
See D.C. Code § 29-411.03(2) (2013 Repl.).
16
Bronner v. Duggan, 364 F. Supp. 3d 9, 23 (D.D.C. 2019) (Bronner III); see
also 28 U.S.C. § 1332(a).
17
Bronner v. Duggan, 962 F.3d 596 (D.C. Cir. 2020) (Bronner IV).
 14

E. The Superior Court Proceedings

On March 15, 2019, appellees filed a 117-page, twelve-count complaint

against the ASA and the individual ASA defendants in Superior Court. On behalf

of all the plaintiffs, the complaint asserted eight counts alleging breaches of fiduciary

duties (counts one and two); ultra vires acts and breach of contract (counts three

through six); violations of the Nonprofit Corporation Act (count seven); and

corporate waste (count nine). On behalf of Mr. Bronner alone, the complaint also

asserted four counts for breach of his editorial contract (count eight), breach of

fiduciary duties (count ten), tortious interference with contract (count eleven), and

aiding and abetting breach of fiduciary duty (count twelve). 18 The complaint sought

both monetary damages and injunctive and declaratory relief.

The defendants filed Rule 12(b)(6) and anti-SLAPP motions to dismiss. In

their 12(b)(6) motions, they argued that plaintiffs’ claims were: (1) outside the

statute of limitations, (2) derivative, and therefore collaterally estopped following

18
Only counts three, four, five, nine, and ten were directed against all of the
defendants. Counts one, two, and eleven were directed against the individual
defendants only, while only the ASA was named as a defendant in counts six, seven,
and eight. Count twelve named a subset of the individual defendants (Ms. Maira,
Ms. Kauanui, Ms. Puar, Mr. Stephens and Mr. Salaita).
 15

the district court decision in Bronner I, (3) precluded by the immunity from suit

bestowed by the federal Volunteer Protection Act, 19 and/or (4) otherwise insufficient

as a matter of law. 20 In their anti-SLAPP motion, the defendants contended that “all

the [appellees’] claims . . . arise in one way or another from the ASA’s decision to

endorse the Academic Boycott and communicative actions related to that decision.”

Plaintiffs opposed the motions.

After a hearing, the court partially granted defendants’ 12(b)(6) motion to

dismiss and denied their anti-SLAPP motion to dismiss. Dealing first with the

12(b)(6) motion, the court ruled that counts three through eight and parts of counts

two and nine were time-barred. The court rejected the other grounds on which the

defendants sought dismissal for failure to state a claim. 21 Thus, the non-time-barred

claims asserted in six counts of the complaint survived the 12(b)(6) motion.

19
42 U.S.C. § 14053.
20
Specifically, defendants argued that plaintiffs had not identified any ultra
vires acts, that Mr. Bronner had no legitimate expectation that his editorial contract
would be renewed, and that the District does not recognize a cause of action for
aiding and abetting breach of fiduciary duty.
21
The court was not persuaded that the non-time barred claims were
derivative or collaterally estopped for that reason, concluded that the defendants did
not benefit from immunity under the Volunteer Protection Act, and ruled that the
claims adequately stated claims for relief. These rulings are not before us for review
in this appeal.
 16

Turning to the special motion to dismiss, the court found that defendants had

made the prima facie showing required to meet their initial burden. It reasoned that

“[t]he 2013 resolution and associated acts constitute a communication of views to

members of the public” concerning “an issue of public interest . . . related to

community well-being,” namely “the ability of foreign scholars to work on relevant

issues safely, freely, and without fear of persecution.” But the court also ruled that

plaintiffs had met their burden of demonstrating a likelihood of success on the

merits:

Plaintiffs have demonstrated that a number of their claims
have merit. Plaintiffs have successfully demonstrated that
they have evidence suggesting that there may have been a
breach of fiduciary duty and that the resolution was
improperly passed, costing [sic; causing?] the ASA to lose
membership and funds. The court is thus persuaded that
these claims do not need to be dismissed pursuant to the
Anti-SLAPP Act.

The court did not evaluate the plaintiffs’ likelihood of success on a claim-by-claim

basis. It did not further explain why it was “not presently persuaded that the

Plaintiffs are so unlikely to win on the merits of their claims that this Complaint

should be barred by the Anti-SLAPP Act.”

The ASA defendants immediately appealed the denial of their anti-SLAPP

motion to dismiss.
 17

II. Discussion

Appellate review of the denial of a special motion to dismiss under the Anti-

SLAPP Act is de novo. 22 Appellants, the ASA defendants, challenge the ruling that

plaintiffs demonstrated the requisite likelihood of success on the merits. The

defendants’ principal argument is that, at a minimum, the Superior Court should

have granted the special motion with respect to the time-barred claims because

plaintiffs (appellees) could not show those claims were likely to succeed on the

merits. Plaintiffs dispute this point and defend the lower court’s ruling. We shall

address appellants’ contentions first. We will then consider plaintiffs’ alternative

argument for affirmance: that the Superior Court erred in finding the defendants

carried their initial burden of showing that the plaintiffs’ claims arose from an act in

furtherance of the right of advocacy.

22
Close It! Title Servs., Inc. v. Nadel, 248 A.3d 132, 138–39 (D.C. 2021).
 18

A. Likelihood of Success on the Merits

1. The Statutory Requirement

“The D.C. Anti-SLAPP Act provides a party defending against a SLAPP with

procedural tools to protect themselves from ‘meritless’ litigation.” 23 One such tool

is the special motion to dismiss, which places the burden on the nonmoving party to

show that its claims arising out of acts in furtherance of the right of advocacy on

issues of public interest are “likely to succeed on the merits.” 24 The Anti-SLAPP

Act does not define the phrase “likely to succeed on the merits,” nor any of its

components.

This court confronted the question of how to interpret the Anti-SLAPP Act’s

likelihood of success requirement in Competitive Enterprise Institute v. Mann.

Mann involved claims for libel and intentional infliction of emotional distress that

were based on articles the defendants had written or published about the plaintiff’s

23
Saudi American Pub. Rels. Affs. Comm. v. Inst. for Gulf Affs., 242 A.3d
602, 605 (D.C. 2020) (quoting Mann, 150 A.3d at 1226–27).
24
D.C. Code § 16-5502 (b).
 19

scientific work on climate change. 25 It was conceded that the plaintiff had “made

the requisite prima facie showing that the [Anti-SLAPP] Act applie[d].” 26 At issue

was whether the plaintiff’s claims were likely to succeed on the merits. 27

The Mann court acknowledged that the Anti-SLAPP Act’s text was

ambiguous in at least one respect: “Although we can be confident that ‘on the merits’

refers to success on the substance of the claim,” the court said, “the meaning of the

requirement that the opponent ‘demonstrate[] that the claim is likely to succeed’ is

more elusive.” 28 Without being able to rely on “a statutory . . . [or] clear dictionary

definition,” 29 the court looked to legislative history and the goals of the special

motion to dismiss:

The special motion to dismiss is a mechanism by which a
SLAPP defendant can ‘expeditiously and economically
dispense of [sic] litigation’ to alleviate the burdens and
cost of defending against a suit that is filed, not to succeed,
but to ‘prevent or punish’ the defendant’s speech or
advocacy. . . . In short, . . . [it] authorizes final disposition
of a claim in a truncated proceeding, usually without the
benefit of discovery, to avoid the toll that meritless

25
Mann, 150 A.3d at 1220.
26
Id. at 1227.
27
Id.
28
Id. at 1233.
29
Id. at 1235.
 20

litigation imposes on a defendant who has made a prima
facie showing that the claim arises from advocacy on
issues of public interest. 30

The Mann court undertook to construe the phrase “likely to succeed on the

merits” in light of the Act’s goals, but also “in a manner that does not supplant the

role of the fact-finder” and “respects the right to a jury trial.” 31 Adopting a standard

akin to that used in evaluating summary judgment motions, the court concluded that,

when evaluating the likelihood of success on the merits, the “precise question the

[trial] court must ask . . . is whether a jury properly instructed on the law, including

any applicable heightened fault and proof requirements, could reasonably find for

the claimant on the evidence presented.” 32 Dismissal is appropriate, the court said,

“only if the court can conclude that the claimant could not prevail as a matter of law,

that is, after allowing for the weighing of evidence and permissible inferences by the

jury.” 33 The “standards against which the court must assess the legal sufficiency of

30
Id. at 1235 (internal citations omitted).
31
Id. at 1236.
32
Id. at 1236.
33
Id. (emphasis in the original).
 21

the evidence are . . . [those] that apply to the underlying claim and related defenses

and privileges.” 34

Mann touched on the potential overlap between the “likely to succeed on the

merits” standard of the Anti-SLAPP Act and the grounds for dismissal under Rule

12(b)(6). The court observed that “unless something more than argument based on

allegations in the complaint is required, the special motion to dismiss would be

redundant in light of the general availability, in all civil proceedings . . . of motions

to dismiss under Rule 12(b)(6).” 35 The requisite “something more” is a proffer of

admissible, credible evidence. A plaintiff must make more of a showing to defeat

an anti-SLAPP motion than is ordinarily required to defeat a 12(b)(6) motion; by

itself, the facial validity of a claim is not normally sufficient to demonstrate the

likelihood of success required by the Anti-SLAPP Act. That demonstration requires

the plaintiff to make, and the court to evaluate, a proffer of evidence supporting the

well-pled claim and overcoming any defenses asserted against it. A plaintiff unable

to make a satisfactory evidentiary proffer will face dismissal and a potential award

34
Id. (emphasis added).
35
Id. at 1233; see also id. at 1238 (“Our interpretation of the . . . standard
applicable to special motions to dismiss ensures that the Anti-SLAPP Act provision
is not redundant relative to the rules of civil procedure.”).
 22

of attorney’s fees and costs to the defendant. 36 Thus, the special motion to dismiss

is not “redundant” of Rule 12(b)(6), because the special motion to dismiss can be

granted even if the 12(b)(6) motion is denied.

Mann did not explicitly address the opposite question that is before us now —

whether a plaintiff’s failure to state a claim upon which relief may be granted is not

only a ground for granting a 12(b)(6) motion but is also a sufficient ground for

granting an anti-SLAPP motion as well. The implication of its redundancy analysis,

however, is that if the plaintiff is unable even to state a claim upon which relief can

be granted, it follows automatically that the plaintiff is unable to demonstrate the

claim is “likely to succeed on the merits” as required by D.C. Code §16-5502(b).

2. Effect of Failure to State a Claim on Which Relief May Be Granted

Appellees resist that conclusion. They argue that the Rule 12(b)(6) standard

and the §16-5502(b) standard are unrelated, because “[t]he Rule 12(b)(6) inquiry

goes to whether the allegations in the complaint state a claim . . . [and] may include

procedural and other issues that are purely legal (as opposed to factual),” while the

anti-SLAPP inquiry (supposedly) “looks only at the quantum of evidence proffered

36
§ 16-5504(a).
 23

by the plaintiff.” At first glance, this position may appear to align with Mann, which

construed a likelihood of success on the merits to mean that “a jury properly

instructed on the law . . . could reasonably find for the claimant on the evidence

presented.” 37

Appellees’ argument, however, is unpersuasive. The anti-SLAPP special

motion to dismiss is essentially an expedited summary judgment motion, albeit with

procedural differences, 38 and summary judgment is appropriate when a claim is

legally insufficient for any reason, including the defenses that may be raised against

it. 39 Thus, Mann recognized explicitly that a court evaluating a claimant’s chances

37
Mann, 150 A.3d at 1236 (emphasis added); see also Fridman v. Orbis Bus.
Intel. Ltd., 229 A.3d 494, 506 (D.C. 2020) (“The standards for adjudicating a special
motion to dismiss and a Rule 12(b)(6) motion are materially distinct.”).
38
As noted in Mann,

[T]he special motion to dismiss is different from summary
judgment in that it imposes the burden on plaintiffs and
requires the court to consider the legal sufficiency of the
evidence presented before discovery is completed. As
concerns the standard to be employed by the court in
deciding whether to grant the motion, however, the
question is substantively the same: whether the evidence
suffices to permit a jury to find for the plaintiff.

Mann, 150 A.3d at 1238 n.32.
39
See Paul v. Howard Univ., 754 A.2d 297, 310–12 (D.C. 2000) (affirming
grant of summary judgment by trial court on the ground that plaintiff’s claims were
 24

of success on the merits must take into account not just “the underlying claim [but

also] related defenses and privileges.” 40 The anti-SLAPP “process in essence

accelerates the consideration of available defenses.” 41 These include defenses like

the statute of limitations that may be asserted in 12(b)(6) motions. 42 Simply put,

regardless of the particular defense or other reason, when no relief can be granted on

a claim as a matter of law, the claim is not “likely to succeed on the merits” because

it legally cannot succeed on the merits. No matter what evidence is or could be

marshaled in support of such a claim, or how the jury might view that evidence, a

“properly instructed” jury will not be able to return a plaintiff’s verdict. 43 Moreover,

time-barred); Santos v. George Washington Univ. Hosp., 980 A.2d 1070, 1081 (D.C.
2009) (same); Ward v. Wells Fargo Bank, N.A., 89 A.3d 115, 127–28 (D.C. 2014)
(same, because plaintiff’s claims were judicially estopped);
40
Mann, 150 A.3d at 1236.
41
Fridman, 229 A.3d at 506.
42
See Logan v. LaSalle Bank Nat’l Ass’n, 80 A.3d 1014, 1020 (D.C. 2013);
see also 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 1357 (3d ed.) (“A complaint showing that the governing statute of limitations has
run on the plaintiff’s claim for relief is the most common situation in which [an]
affirmative defense . . . provides a basis for a motion to dismiss under Rule
12(b)(6)”) (collecting cases). We note that the ASA defendants’ other defenses were
also permissibly asserted by 12(b)(6) motion; see, e.g., Walker v. FedEx Off. & Print
Servs., Inc., 123 A.3d 160, 164 (D.C. 2015) (collateral estoppel and res judicata);
Moss v. Stockard, 580 A.2d 1011, 1020 n. 18. (D.C. 1990) (immunity).
43
Wright & Miller, supra note 42, at §1357 (“[W]hen the plaintiff includes
allegations that show on the face of the complaint that there is some insuperable bar
to securing relief . . . dismissal is justified because the allegations of the complaint
 25

it would hardly be in keeping with the objective of the Anti-SLAPP Act — “to

alleviate the burdens and costs of defending against a suit that is filed, not to succeed,

but to prevent or punish the defendant’s speech or advocacy” 44 — if trial courts were

required to ignore any fatal legal deficiencies of the plaintiff’s claims and keep them

alive merely so that they could be dismissed later under Rule 12(b)(6). We therefore

hold that where the court grants a 12(b)(6) motion because no relief can be granted

on a claim as a matter of law, the plaintiff cannot show a likelihood of success on

the merits of that claim for the purposes of the anti-SLAPP motion.

Courts in other jurisdictions have reached the same conclusion in interpreting

similar anti-SLAPP laws. In Phoenix Trading Inc. v. Loops LLC, the Ninth Circuit

reviewed the denial of a special motion to strike under Washington’s anti-SLAPP

statute, which provided that “the responding party must establish, by clear and

convincing evidence, a likelihood of success on the merits” to defeat the motion. 45

itself clearly demonstrate that whatever interpretation is given to the facts the
plaintiff does not have a claim that is legally redressible.”) (emphasis added).
44
Mann, 150 A.3d at 1235 (internal quotation marks omitted).
45
732 F.3d 936, 941 (9th Cir. 2013) (citing Wash. Rev. Code Ann. § 4.24.525
(West 2010)). This statute was repealed in May 2021, when Washington became
the first state to enact the Uniform Public Expression Protection Act (“UPEPA”).
See 2021 Wash. Leg. Serv. Ch. 259. Section 7(1)(c)(ii)(A) of UPEPA expressly
adopts the Rule 12(b)(6) standard, providing that a special motion to dismiss is
appropriate if the moving party can show that the “responding party failed to state a
 26

The appellate court affirmed the district court’s ruling that the plaintiff had not met

this standard because some of its claims were time-barred under the statute of

limitations. 46 California courts have similarly held that a SLAPP has no probability

of success on the merits — “a probability that the plaintiff will prevail on the

claim” 47 — where it is time-barred, 48 collaterally estopped, 49 or covered by an

absolute litigation privilege. 50 As the Ninth Circuit explained in Hilton v. Hallmark

cause of action upon which relief can be granted.” Id. The official comments to
UPEPA add that such a dismissal is warranted for “a claim that is barred by res
judicata, or preempted by some other law,” and “if a cause of action, while perhaps
factually viable, is time-barred by the statute of limitations.” Uniform Public
Expression Protection Act, National Conference of Commissioners on Uniform
State Laws (2020), at 4, 19–20, available at
https://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?
DocumentFileKey=d446fed6-3338-8b26-555f-9a4ab2ff4c56&forceDialog=0;
https://perma.cc/EHJ2-8568. The UPEPA thus aligns with our thinking in this case.
46
732 F.3d at 944.
47
Cal. Civ. Pro. Code § 425.16(b)(1) (West 2015).
48
Garcia v. Rosenberg, 255 Cal. Rptr. 3d 377, 384 (Cal. Ct. App. 2019).
49
Supershuttle Int’l, Inc. v. Lab. & Workforce Dev. Agency, 253 Cal. Rptr.
3d 666, 676 (Cal. Ct. App. 2019) (“[T]he question whether [a prior judgment] should
be accorded collateral estoppel effect . . . is relevant to the second step of the anti-
SLAPP analysis, plaintiff’s likelihood of success on the merits.”).
50
Laker v. Bd. of Trs. of Cal. State Univ., 244 Cal. Rptr. 3d 238, 259 (Cal.
Ct. App. 2019); see also RCO Legal, P.S., Inc. v. Johnson, 820 S.E.2d 491, 498 n.10,
500 (Ga. Ct. App. 2018) (stating that to establish a probability of prevailing on the
merits under Georgia’s anti-SLAPP law, the plaintiff “must state and substantiate a
legally sufficient claim,” and holding that this standard was not met where
defendants’ allegedly defamatory statements “were absolutely privileged”) (internal
 27

Cards, “[t]he second stage of the anti-SLAPP inquiry [probability of success on the

merits] determines whether ‘the complaint is both legally sufficient and supported

by a sufficient prima facie showing of facts to sustain a favorable judgment if the

evidence submitted by the plaintiff is credited.’” 51

3. Individual Examination of Claims Is Required

In this case, the Superior Court determined that six of the plaintiffs’ twelve

claims were fully time-barred and that two others were partially time-barred. It

follows from what we have said that, if these claims arose from acts in furtherance

of the right of advocacy on issues of public interest, the court should have granted

the ASA defendants’ special motion to dismiss them.

The defendants also challenge the court’s likelihood of success determination

regarding the claims that survived their 12(b)(6) motion to dismiss. As we have

noted, the court found only that “a number” of the plaintiffs’ claims were likely to

citations omitted); Holbrook v. City of Santa Monica, 51 Cal. Rptr. 3d 181, 187 (Cal.
Ct. App. 2006) (plaintiffs could not demonstrate a probability of success on the
merits because they lacked standing).
51
599 F.3d 894, 902 (9th Cir. 2010) (emphasis added; quoting Integrated
Healthcare Holdings, Inc. v. Fitzgibbons, 44 Cal. Rptr. 3d 517, 527 (Ct. App. 2006)).
 28

succeed on the merits because “there may have been” a breach of fiduciary duty or

a defect in the passage of the 2013 resolution. The court did not explicitly discuss

each claim’s individual likelihood of success or the sufficiency of the evidence

supporting each claim, nor did it identify which specific counts passed muster. The

defendants rightly complain that the court’s evaluation therefore did not comply with

the Anti-SLAPP Act, which plainly required a claim-by-claim assessment. 52 Our

precedent confirms the necessity of a claim-specific analysis of whether the plaintiff

is likely to succeed on the merits. 53 Although our review is de novo, the necessary

individualized assessment of the plaintiffs’ claims is not something this court will

undertake “in the first instance.” 54

52
See D.C. Code §§ 16-5502(a) (“A party may file a special motion to dismiss
any claim . . . .”), 16-5502(b) (motion to dismiss directed to “the claim at issue”),
16-5501(2) (defining “claim” to “include[] any civil lawsuit, claim, complaint, cause
of action, cross-claim, counterclaim, or other civil judicial pleading or filing
requesting relief”), and 16-5504(a) (authorizing awards of attorney fees and costs
where a movant prevails “in whole or in part” on a special motion to dismiss).
53
See Mann, 150 A.3d at 1240–62 (holding that plaintiff successfully
established that some of his defamation claims were likely to succeed on the merits,
but did not meet his burden with respect to other defamation claims or his claim for
intentional infliction of emotional distress).
54
Saudi American Pub. Rels. Affs. Comm., 242 A.3d at 613 (declining to
examine “in the first instance” whether plaintiffs could show they were likely to
succeed on their claims, and instead remanding for trial court to hold a hearing and
rule on that issue); see also, e.g., Folks v. District of Columbia, 93 A.3d 681, 686
(D.C. 2014) (“The trial court did not definitively resolve that issue. We exercise our
discretion to leave that issue for resolution by the trial court in the first instance.”).
 29

The plaintiffs argue, however, that notwithstanding the foregoing deficiencies

in the Superior Court’s denial of the anti-SLAPP motion, we should uphold that

denial because their claims do not arise from acts in furtherance of the right of

advocacy on an issue of public interest. We turn now to this alternative ground for

affirmance.

B. Claims “Arising From” an Act in Furtherance of the Right of Advocacy

1. The Required Prima Facie Showing

A party filing a special motion to dismiss must “make[] a prima facie showing

that the claim at issue arises from an act in furtherance of the right of advocacy on

issues of public interest.” 55 The Anti-SLAPP Act provides that an “act in furtherance

of the right of advocacy on issues of public interest” means:

(A) Any written or oral statement made:

(i) In connection with an issue under consideration
or review by a legislative, executive, or judicial
body, or any other official proceeding authorized by
law; or

55
§ 16-5502(b) (emphasis added); see also § 16-5502(a) (“A party may file
a special motion to dismiss any claim arising from an act in furtherance of the right
of advocacy on issues of public interest within 45 days after service of the claim.”).
 30

(ii) In a place open to the public or a public forum
in connection with an issue of public interest; or

(B) Any other expression or expressive conduct that
involves petitioning the government or communicating
views to members of the public in connection with an issue
of public interest. 56

Thus, the movant must make a prima facie showing that the claim at issue “arises

from” some form of speech — a “written or oral statement” or other “expression or

expressive conduct” — of the specified character. 57 This accords with “the Anti-

56
D.C. Code § 16-5501(1). The term “issue of public interest” is defined to
mean “an issue related to health or safety; environmental, economic, or community
well-being; the District government; a public figure; or a good, product, or service
in the market place,” with the qualification that the term “shall not be construed to
include private interests, such as statements directed primarily toward protecting the
speaker’s commercial interests rather than toward commenting on or sharing
information about a matter of public significance.” Id. §16-5501 (3); see also §16-
5505 (“Exemptions”).
57
We understand a “prima facie” showing to be one that the non-movant may
attempt to refute. See Prima Facie, BLACK’S LAW DICTIONARY (10th ed. 2014)
(“Sufficient to establish a fact or raise a presumption unless disproved or rebutted”);
Prima Facie, WEX LEGAL INFORMATION INSTITUTE (2021),
https://www.law.cornell.edu/wex/prima_facie#:~:text=Overview,term%20%22pri
ma%20facie%20evidence.%22&text=A%20prima%20facie%20case%20is,a%20le
gally%20required%20rebuttable%20presumption; https://perma.cc/4UHX-SKRX
(“A prima facie case is a cause of action or defense that is sufficiently established
by a party's evidence to justify a verdict in his or her favor, provided such evidence
is not rebutted by the other party.”); see also State ex rel. Herbert v. Whims, 38
N.E.2d 596, 599 (Ohio Ct. App. 1941) (“The words ‘prima facie’ as used in statutes
merely mean a fact presumed to be true unless disproved by some evidence to the
contrary, but they always imply that the proper party shall have the opportunity of
offering proof in rebuttal of the prima facie facts.”); Pac. Tel. & Tel. Co. v. Wallace,
75 P.2d 942, 947 (Or. 1938) (“A prima facie case is such as will suffice, until
 31

SLAPP Act’s purpose to deter meritless claims filed to harass the defendant for

exercising First Amendment rights.” 58

The Anti-SLAPP Act does not define the term “arises from,” and we have not

had occasion to construe its meaning before now. That is not surprising. Most anti-

SLAPP motions seek dismissal of actions for defamation and other torts arising out

of allegedly harmful speech. 59 In those actions, a direct link between the claims and

the speech is apparent, and the threshold dispute is over whether the Anti-SLAPP

contradicted and overcome by other evidence.”) (internal quotation marks omitted);
Virginia v. Black, 538 U.S. 343, 369–70 (2003) (“orthodox” meaning of the term
“prima facie evidence” is “evidence that suffices, on its own, to establish a particular
fact. But it is hornbook law that this is true only to the extent that the evidence goes
unrebutted.”).
58
Mann, 150 A.3d at 1239. The First Amendment provides in relevant part
that “Congress shall make no law . . . abridging the freedom of speech, or of the
press; or the right of the people . . . to petition the Government for a redress of
grievances.” U.S. CONST. amend. I.
59
See Mann, 150 A.3d at 1220 (plaintiff sued for defamation and intentional
infliction of emotional distress from allegedly defamatory publications); Saudi
American Pub. Rels. Affs. Comm., 242 A.3d at 607 (suit for defamation, false light
invasion of privacy, and intentional infliction of emotional distress); Fridman, 229
A.3d at 501 (defamation); Close It! Title Servs., 248 A.3d at 136 (defamation, false
light invasion of privacy, and tortious interference with business relations); Doe No.
1 v. Burke, 91 A.3d 1031, 1035 (D.C. 2014) (defamation, tortious interference with
prospective business advantage, and false light invasion of privacy).
 32

Act protects the defendant’s statements, not whether the plaintiff’s claims arose from

those statements in the first place. 60

This case is different. Plaintiffs did not assert claims for defamation or, they

contend, other tortious speech. They argue that the Anti-SLAPP Act does not apply

to their suit at all, because their claims do not arise from speech. Instead, plaintiffs

assert, their claims “arise from” various types of corporate wrongdoing — mainly,

“the wrongful takeover of a nonprofit corporation, in breach of its bylaws, and the

unjustified expenditure of hundreds of thousands of dollars from the nonprofit’s trust

fund” — that the Act does not purport to protect even if the wrongdoing was related

in some way to protected speech (putatively, the 2013 Resolution). 61 Defendants

counter that the Anti-SLAPP Act is implicated because were it not for the passage

of that Resolution, the plaintiffs “would not be pressing the[ir] myriad of claims.”

60
See Saudi America Pub. Rels. Affs. Comm., 242 A.3d at 612–13 (analyzing
whether statements were sufficiently connected to an issue of public interest); Close
It! Title Servs., 248 A.3d at 143–46 (same).
61
Plaintiffs do not challenge the Superior Court’s ruling that the 2013
Resolution itself was an act in furtherance of public advocacy on an issue of public
interest, namely, an issue related to “community well-being.” We express no view
on the correctness of that ruling.
 33

2. The Meaning of “Arises From”

We agree with plaintiffs that the Superior Court did not adequately consider

whether each of their claims “arises from” an act in furtherance of the right of

advocacy. We conclude it was not enough to find that the 2013 Resolution

constituted such an act (as the term is defined) and was related in some way to the

non-speech conduct targeted in the plaintiffs’ causes of action. 62 Bearing in mind

the statutory context in which the words “arise from” are used, we conclude we must

interpret them less expansively.

“The first step in construing a statute is to read the language of the statute and

construe its words according to their ordinary sense and plain meaning.” 63 But “[a]t

the same time, we do not read statutory words in isolation; the language of

62
Appellants propose that “using ASA funds to defend against litigation
challenging the Resolution is also protected under the Anti-SLAPP Act as ‘conduct
that involves petitioning the government . . . in connection with an issue of public
interest.’” This may be correct, but as appellants float this contention without
developing it, and the trial court did not rely on it when ruling on the special motion
to dismiss, we do not consider it in this opinion. See Comford v. United States, 947
A.2d 1181, 1188 (D.C. 2008) (“Issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed waived.”).
The contention may be explored on remand.
63
O’Rourke v. District of Columbia Police & Firefighters’ Ret. & Relief Bd.,
46 A.3d 378, 383 (D.C. 2012) (quotation marks and footnote omitted).
 34

surrounding and related paragraphs may be instrumental to understanding them.” 64

“[O]ur focus cannot be too narrow, for the plainness or ambiguity of statutory

language is determined not only by reference to the language itself, but also by

considering the specific context in which that language is used, and the broader

context of the statute as a whole.” 65 Where we find ambiguity, we may look for

guidance to the statute’s purpose and legislative history “to ensure that our

interpretation is consistent with legislative intent.” 66

“In cases where we have interpreted the phrase ‘arise from’ in statutes, we

have said that ‘[a]rise from’ may well connote a causal relation less direct and

immediate than, say, ‘result from’.” 67 We have recognized that “statutory language

employing the phrase ‘arising from’ is broad,” 68 but it is not unbounded. We have

64
District of Columbia v. Beretta, U.S.A., Corp., 872 A.2d 633, 652 (D.C.
2005).
65
O’Rourke, 46 A.3d at 383 (cleaned up).
66
District of Columbia Appleseed Ctr. for L. & Just., Inc. v. District of
Columbia Dep’t of Ins., 214 A.3d 978, 985 (D.C. 2019) (internal quotation marks
omitted).
67
1230-1250 Twenty-Third St. Cond. Unit Owners Ass’n, Inc. v. Bolandz,
978 A.2d 1188, 1191 (D.C. 2009) (quoting Beretta, 872 A.2d at 652).

Id. (quoting District of Columbia Ins. Guar. Ass’n v. Algernon Blair, Inc.,
68

565 A.2d 564, 568 (D.C. 1989)).
 35

rejected efforts to read the phrase so expansively as to effect an implausible

enlargement of a statutory cause of action. 69 Generally speaking, “where a claim is

said to ‘arise from’ some predicate, . . . there [must] be a ‘substantial connection’ or

nexus between the predicate and the claim.” 70

Under the Anti-SLAPP Act, therefore, a party filing a special motion to

dismiss a claim must show the claim has a substantial connection or nexus to a

protected act. D.C. Code § 16-5501(1) provides a highly specific definition of the

class of acts that the Anti-SLAPP Act shields. It carefully limits that class to certain

categories of speech, with the identified aim of protecting “the right of advocacy on

issues of public interest.” The narrowness and precision of the definition strongly

indicates the legislature did not intend the Act’s protections to stretch too far. We

are led to conclude that the party filing a special motion to dismiss a claim must

show that some form of speech within the Anti-SLAPP Act’s protection is the basis

of the asserted cause of action. A legally objectionable aspect of the protected

speech itself — e.g., that the speech is defamatory or otherwise tortious, or violates

69
See Beretta, 872 A.2d at 652–53.
70
Bolandz, 978 A.2d at 1191 (quoting Algernon Blair, 565 A.2d at 568).
 36

a contract’s prohibition — therefore must be the subject of the claim or an element

of the cause of action asserted.

This reading is buttressed by the California Supreme Court’s interpretation of

that state’s similar anti-SLAPP statute. Under that law, a party may file a special

motion to strike any cause of action “arising from” a protected act in furtherance of

the right of petition or free speech in connection with a public issue. 71 As we

undertake to do with our Act, the California Supreme Court construed this statutory

language in accordance with “the Legislature’s intent, as exhibited by the plain

meaning of the actual words of the law.” 72

“[T]he ‘arising from’ requirement is not always easily met,” the California

Supreme Court observed. 73 “[T]he mere fact an action was filed after protected

activity took place does not mean it arose from that activity.” 74 “Rather, the act

71
See Cal. Civ. Pro. Code § 425.16(b)(1).
72
Equilon Enters. v. Consumer Cause, Inc., 52 P.3d 685, 689 (Cal. 2002)
(quotation marks and citation omitted).
73
Id. at 693.
74
Id. See also City of Cotati v. Cashman, 52 P.3d 695, 701 (Cal. 2002) (“That
a cause of action arguably may have been triggered by protected activity does not
entail that it is one arising from such.”); Park v. Bd. of Trs. of Cal. State Univ., 393
P.3d 905, 909 (Cal. 2017) (emphasizing the need to “respect the distinction between
 37

underlying the plaintiff’s cause or the act which forms the basis for the plaintiff’s

cause of action must itself have been an act in furtherance of the right of petition or

free speech.” 75 In other words, the defendant must “demonstrate that the defendant’s

conduct by which plaintiff claims to have been injured falls within” the statutory

definition of protected activity. 76 This means that, “in ruling on an anti-SLAPP

motion, courts should consider the elements of the challenged claim and what

actions by the defendant supply those elements and consequently form the basis for

liability.” 77

In this case, we understand the Superior Court to have accepted a significantly

more expansive interpretation of the phrase “arises from.” In ruling on the special

motion, the judge was “persuaded that the [plaintiffs’] claims . . . fall under the [Anti-

Trust Act] because the 2013 Resolution was “related to community well-being, and

thus an issue of public interest.” But that loose interpretation of “arises from”

facilitates special motions to dismiss claims based on non-speech activities that are

[protected] activities that form the basis for a claim and those that merely lead to the
liability-creating activity or provide evidentiary support for the claim”).
75
Equilon Enters., 52 P.2d at 693 (cleaned up).
76
Id.
77
Park v. Bd. of Trs. of Cal. State Univ., 393 P.3d 905, 908 (Cal. 2017).
 38

merely tangentially related to protected speech, extending the Anti-SLAPP Act to

cover activities outside the statutory definition of protected acts; it thereby burdens

claims based on conduct the Act was not meant to shield. 78 This upsets the delicate

balance that the special motion to dismiss was intended to strike. As we explained

in Mann, “the special motion to dismiss in the Anti-SLAPP Act must be interpreted

as a tool calibrated to take due account of the constitutional interests of [both parties]

. . . ; it is not a sledgehammer meant to get rid of any claim against a defendant.” 79

The legislative history of the Anti-SLAPP Act is also informative. As

originally introduced in 2010, the statute would have permitted special motions to

dismiss “any claim arising from an act in furtherance of the right of free speech,”

which was defined to include not only speech but also “[a]ny other conduct in

furtherance of the constitutional right to petition the government or the constitutional

78
We think it most implausible, for example, that the Anti-SLAPP Act
enables a defendant sued for embezzling or misappropriating entrusted funds to file
a special motion to dismiss based on a showing that the funds were used in
furtherance of the right of advocacy on an issue of public interest. It would be
strange to say such a lawsuit “arises from” statutorily protected activity rather than
from the defendant’s defalcation, regardless of whether the plaintiff disapproved of
the defendant’s speech; equally strange to suggest that the Anti-SLAPP Act was
meant to benefit such a defendant.
79
Mann, 150 A.3d at 1239 (emphasis added).
 39

right of free expression in connection with an issue of public interest.” 80 This

definition reasonably could have been construed to cover not only speech, but at

least some related non-speech conduct as well 81 (although that does not, in fact,

appear from the Committee Report on the bill to have been intended). 82 But at the

suggestion of the ACLU, 83 the Council removed the part of the definition

encompassing “any other conduct” and replaced it with narrower language more

clearly limited to speech: “Any other expression or expressive conduct that involves

petitioning the government or communicating views to members of the public in

connection with an issue of public interest.” 84

80
2010 Committee Report, Attachment 1, at 1–2 (emphasis added).
81
Cf. Mullen v. Meredith Corp., 353 P.3d 598, 603–04 (Or. Ct. App. 2015)
(reading “arises out of” language in anti-SLAPP law flexibly because the “statutory
text speaks broadly of ‘any claim’ that arises out of ‘conduct in furtherance of’ free
speech rights”).
82
This is not surprising. As the 2010 Committee Report noted in explaining
the need for the legislation, the “vast majority” of SLAPP suits “were brought under
legal charges of defamation (such as libel and slander), or as such business torts as
interference with contract” that typically are based on speech. 2010 Committee
Report at 2.
83
See id., Attachment 2, Testimony of the American Civil Liberties Union of
the Nation’s Capital by Arthur B. Spitzer, Legal Director, on Bill 18-893, the “Anti-
SLAPP Act of 2010” at 5 (Sept. 17, 2010).
84
D.C. Code § 16-5501(1)(B) (emphasis added).
 40

Appellants propose that a claim should nonetheless be deemed to arise from

protected activity if the plaintiff’s subjective motivation for asserting the claim was

a desire to chill or punish speech. But the statutory text does not call for inquiry into

the plaintiff’s motives; it focuses on the claim, not the claimant. Nor does anything

in the legislative history suggest the Council envisioned an examination of the

plaintiff’s motives in connection with special motions to dismiss. This contrasts

with some state anti-SLAPP laws that do call for examination of the plaintiff’s

subjective motivation. 85

85
See, e.g., Md. Code. Ann. Cts. & Jd. Proc. § 5-807(b) (West 2010) (“A
lawsuit is a SLAPP suit if it is: (1) Brought in bad faith against a party who has
communicated with a federal, State, or local government body or the public at large
to report on, comment on, rule on, challenge, oppose, or in any other way exercise
rights under the First Amendment . . . regarding . . . any issue of public concern; (2)
Materially related to the defendant’s communication; and (3) Intended to inhibit or
inhibits the exercise of rights under the First Amendment”) (emphases added); Tex.
Civ. Prac. & Rem. Code Ann. § 27.007(a) (West 2019) (allowing for additional
findings “regarding whether the legal action was brought to deter or prevent the
moving party from exercising constitutional rights”); Blanchard v. Steward Carney
Hosp., 75 N.E.3d 21, 38 (Mass. 2017) (nonmoving party may avoid dismissal under
anti-SLAPP statute “by demonstrating that each . . . claim was not primarily brought
to chill the special movant’s legitimate petitioning activities.”); Atlanta Humane
Soc’y v. Harkins, 603 S.E.2d 289, 294 (Ga. 2004) (“Before the trial court is
authorized to dismiss the claim, it must further determine . . . that the claim is
interposed for an improper purpose or without a reasonable belief that it is well
grounded in fact and is warranted by good-faith reliance on existing substantive law)
(emphasis added) (citing prior version of Ga. Code Ann. § 9-11-11.1(b) (West 1998),
amended in 2016).
 41

There is no doubt that the Council was concerned with “prevent[ing] the

attempted muzzling of opposing points of view” via SLAPPs, 86 but it did not elect

to do so by authorizing the trial court to explore the plaintiff’s underlying motives

in asserting a claim. Instead, the Anti-SLAPP Act instructs courts to determine

whether the claim at issue “arises from” a protected act. We think no sensible

reading of that language could lead to a conclusion that the Council intended courts

to gauge a plaintiff’s subjective reasons for filing their claims. 87

In sum, we hold that the prima facie showing required to support a special

motion to dismiss a claim under the District of Columbia Anti-SLAPP Act is a

86
2010 Committee Report, at 4.
87
The California Supreme Court has reached the same conclusion about that
state’s similarly worded anti-SLAPP statute. See Equilon Enters., 52 P.3d at 688
(Cal. 2002) (“[T]here simply is nothing in the statute requiring the court to engage
in an inquiry as to the plaintiff’s subjective motivations before it may determine
[whether] the anti-SLAPP statute is applicable.”) (internal quotation marks and
citation omitted); Cashman, 52 P.3d at 701 (Cal. 2002) (plaintiff’s “subjective intent
[in filing suit] is not relevant under the anti-SLAPP statute”); id. at 700 (“The anti-
SLAPP statute cannot be read to mean that any claim asserted in an action which
arguably was filed in retaliation for the exercise of speech or petition rights falls
under [the special motion to strike provision] whether or not the claim is based on
conduct in exercise of those rights.” (cleaned up)); see also Abrams v. Sanson, 458
P.3d 1062, 1070 n.7 (Nev. 2020) (“Our anti-SLAPP statutes have no . . . preliminary
requirement that a district court consider motive”).
 42

showing that the claim is based on the movant’s protected activity, i.e., that such

activity is an element of the challenged cause of action.

3. The Claims at Issue

In this case, the Superior Court did not have the benefit of our holding, and it

did not examine plaintiffs’ dozen claims according to the proper standard. On their

face, however, there is serious question whether a number of those claims are based

on the speech — the 2013 Resolution — that constituted the ASA defendants’

assertedly protected activity.

Counts one and two of the complaint touch on facts that are related to the 2013

Resolution, but the wrongful acts that they identify predate its adoption and

promulgation. Count one alleges that the individual defendants breached their

fiduciary duties to the ASA and its members during the preliminary discussions on

the 2013 Resolution and when seeking appointment to the National Council by

misrepresenting and/or omitting material facts “regarding (1) their personal political

agenda . . . to advance the purposes of USACBI by causing the [ASA] to adopt and

implement the boycott, and (2) the expected costs of the Academic Boycott.” Count

two further alleges that the individual defendants violated their “duties of care, good

faith, loyalty, and candor” by, in part, “manipulating the nomination and voting
 43

process, miscounting votes . . . [and] withholding voting rights from certain

members” in contravention of the association’s bylaws. We think it unclear whether

either of these counts alleges a cause of action based on protected activity.

The same can be said for several of the other counts. Count three contends

that the individual appellants violated the ASA’s constitution by failing to nominate

candidates who were “representative of the [ideological] diversity of the

association’s membership” for various leadership positions prior to 2013. Count

four alleges that the ASA’s constitution prohibited the freezing of the membership

rolls that prevented plaintiff Barton from voting on the 2013 Resolution. 88 Counts

six and seven also challenge the process by which the 2013 Resolution was adopted.

They allege that: (1) the Resolution did not obtain the two-thirds majority required

by the ASA’s bylaws, and (2) the vote was held in violation of quorum requirements.

Finally, although counts ten through twelve concern conduct subsequent to the

promulgation of the 2013 Resolution, they do not appear to be based on the

Resolution itself. Instead, these counts take issue with the ASA’s purportedly

unjustified non-renewal of Mr. Bronner’s editorial contract and its alleged

mismanagement of the Encyclopedia.

88
Count eight reiterates this theory.
 44

On the other hand, at least two counts do appear to be based on the 2013

Resolution. Count nine alleges that the individual appellants’ use of funds to

“declare enacted” the 2013 Resolution amounted to corporate waste, while count

five casts the Resolution as an improper attempt to influence Israeli and American

legislation. 89

We express no view at this time as to whether the ASA defendants met their

burden of showing that any of the plaintiffs’ claims arise from acts in furtherance of

the right of advocacy on issues of public interest. Like the question of whether the

plaintiffs have demonstrated they are likely to succeed on the merits of any of their

claims, this threshold issue should be examined in the first instance, claim by claim,

by the trial court.

III. Conclusion

To sum up, a special motion to dismiss claims under the Anti-SLAPP Act

contemplates a two-step analysis with respect to each challenged claim. At the first

89
Section 4 of the ASA’s Statement of Election, which formalized its
incorporation under the Nonprofit Corporation Act, provides that “[n]o substantial
part of the activities of the corporation shall be the carrying on of propaganda or
otherwise attempting, to influence legislation.”
 45

step, the movant must make a prima facie showing that each claim at issue “arises

from” an act in furtherance of the right of advocacy on an issue of public interest.

To determine whether the movant has made that showing, the court must examine

whether each claim is based on such protected activity. If the court concludes the

movant has made the necessary showing, it must grant the special motion unless the

responding party demonstrates the claim is “likely to succeed on the merits,” in

which case the motion must be denied. A determination by the court pursuant to

Rule 12(b)(6) that the responding party has failed to state a claim on which relief

can be granted suffices to establish that the claim is not “likely to succeed on the

merits.” The court should rule on the special motion to dismiss with respect to each

claim, even if it grants a 12(b)(6) motion to dismiss that claim.

Because the Superior Court did not carry out the two-step analysis in the

manner we hold the Anti-SLAPP Act requires, we vacate the denial of the special

motion to dismiss and remand for further proceedings consistent with this opinion.

So ordered.