Jacobson v. Clack

309 A.3d 571

Mark Z. JACOBSON, Ph.D., Appellant,

v.Christopher T. M. CLACK, Ph.D., et al., Appellees.

No. 22-CV-0523

District of Columbia Court of Appeals.

Submitted January 12, 2023

Decided February 15, 2024

Appeal from the Superior Court of the District of Columbia (2017-CA-006685-B), (Hon. Elizabeth C. Wingo, Trial Judge)

Mark Z. Jacobson, pro se.

Evangeline C. Paschal, Washington, DC, was on the brief for appellee National Academy of Sciences.

Drew W. Marrocco, Washington, DC, was on the brief for appellee Christopher T. M. Clack.

Before McLeese and Deahl, Associate Judges, and Glickman, Senior Judge.

Concurring opinion by Associate Judge Deahl at page 585.

Deahl, Associate Judge:

Mark Jacobson filed a defamation suit after a scientific journal published an article criticizing a research paper of his. Jacobson sued the article’s lead author, Christopher Clack, and the National Academy of Sciences ("NAS"), which publishes the journal. Jacobson sought more than $10 million in damages from each of them. Clack and NAS filed special motions to dismiss under the District of Columbia Anti-Strategic Lawsuits Against Public Participation Act, or Anti-SLAPP Act, D.C. Code §§ 16-5501-5505. The trial court held a hearing on the motions and hinted that it was likely to grant them. Two days later, before the trial court ruled, Jacobson voluntarily dismissed his suit.

Clack and NAS moved for attorneys’ fees, under the Anti-SLAPP Act’s fee-shifting provision, which allows a court to award attorneys’ fees to a defendant who "prevails in whole or in part" in their special motions to dismiss. D.C. Code § 16-5504(a). The court granted the motion for attorneys’ fees, awarding $428,723 to NAS and $75,000 to Clack. Jacobson now appeals that award and argues that his voluntary dismissal of his suit means that Clack and NAS did not "prevail" as is required before attorneys’ fees can be awarded. That raises a question of first impression for this court: whether and when a party can be said to have prevailed in a special motion to dismiss that is followed by a voluntary dismissal of the suit. We agree with the trial court that NAS and Clack prevailed in their motions to dismiss and therefore were appropriately awarded attorneys’ fees, and so we affirm.

I.

Mark Jacobson is a professor at Stanford University. In 2015, he was the lead author on a paper published in The Proceedings of the National Academy of Sciences ("PNAS"), which concluded that the U.S. power grid could inexpensively move to "100% wind, water, and solar" energy sources by 2050 without the need for "natural gas, biofuels, nuclear power, or stationary batteries." PNAS gave Jacobson and his research team one of its annual awards for making an "outstanding contribution" to the field of applied environmental sciences.

Christopher Clack co-authored an article in 2017, also published in PNAS, that was very critical of Jacobson’s methodologies and conclusions. Clack’s paper posited that Jacobson’s study "used invalid modeling tools, contained modeling errors, and made implausible and inadequately supported assumptions." Clack and his co-authors provided detailed calculations and reasons for questioning Jacobson’s conclusions, which they said "are not supported by adequate and realistic analysis and do not provide a reliable guide to whether and at what cost such a transition might be achieved." The article continued: "[T]he weight of the evidence suggests that a broad portfolio of energy options will help facilitate an affordable transition to a nearzero emission energy system."

Before publishing Clack’s critique, PNAS sent the article to Jacobson for comment, and his responses were forwarded to Clack and his co-authors, who made some minor revisions. PNAS also allowed Jacobson and his co-authors to write a rebuttal to Clack’s article, to be published alongside it. Jacobson did not think that was sufficient and instead insisted that Clack’s article be shelved entirely. He informed a PNAS editor over email that he had retained an attorney who would send a cease-and-desist letter, and he threatened to seek a preliminary injunction to prevent publication of Clack’s critique. PNAS nonetheless printed both Clack’s article and Jacobson’s rebuttal in the same issue and posted them online simultaneously. In his rebuttal piece, Jacobson asserted that it was Clack’s analysis, not his, that was "riddled with errors" and contained "demonstrably false" claims.

Jacobson sued Clack and NAS in D.C. Superior Court.¹ He alleged that Clack’s article consisted of "egregious falsehoods and misstatements" that injured his reputation. Jacobson asserted claims of defamation against both Clack and NAS, and additional promissory estoppel and breach-of-contract claims against NAS on the theory that the journal violated its editorial policies by publishing Clack’s article. He sought damages "believed to be in excess of’ $10 million each from Clack and NAS, punitive damages, and a retraction of Clack’s article. Two weeks after filing the lawsuit, Jacobson submitted to PNAS "errata," responsive to some of the points raised in Clack’s article, to "clarify our hydropower assumption because the original text describing this assumption was not clear." NAS and Clack each filed special motions to dismiss under the District’s Anti-SLAPP Act. D.C. Code § 16-5502. Jacobson opposed the motions and, separately, sought targeted discovery. The trial court denied Jacobson’s discovery request and held a hearing on the special motions to dismiss.

At the hearing, the trial judge expressed serious skepticism about Jacobson’s chances of success on the merits. In questioning Jacobson’s counsel, she said that "criticizing ideas is not defamation" and "[w]hether it offends you is not the standard." The judge distinguished between assertions of inaccuracies and assertions of misconduct—the former being fodder for scientific disagreement and the latter potentially actionable as defamation. She noted that Clack’s article never claimed that Jacobson "falsified data, [ ] engaged in misconduct, [or] deliberately misled the public." The judge seemed to agree with NAS and Clack that this was a paradigmatic scientific disagreement—not one to be hashed out and resolved in court. She suggested at one point that, if anything, it was Jacobson’s characterizations of Clack’s article, rather than vice versa, that might "be capable of defamatory interpretation."

She told the parties that she would issue a written decision "promptly" and adjourned.

Two days later, before any ruling, Jacobson voluntarily dismissed his suit under Superior Court Civil Rule 41(a)(1)(A)(i). That rule provides that a "plaintiff may dismiss an action without a court order by filing … a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment." After Jacobson’s voluntary dismissal, Clack and NAS filed motions for attorneys’ fees under the Anti-SLAPP Act, which authorizes awards for attorneys’ fees and litigation costs to "a moving party who prevails, in whole or in part," on a special motion to dismiss under the Act. D.C. Code § 16-5504(a). They argued that Jacobson "misused the judicial system as a means to chill scientific debate" and caused them to "incur significant legal expenses to address baseless allegations and a discovery motion." Jacobson countered that because he had voluntarily dismissed his complaint, there was no "prevailing party" given that nobody had been "awarded [any] relief by the court." See Settlemire v. D.C. Off. of Emp. Appeals, 898 A.2d 902, 907 (D.C. 2006) ("Generally speaking, the term ‘prevailing party’ is understood to mean a party ‘who has been awarded some relief by the court." " (citations omitted)).

The trial court agreed with NAS and Clack that they could recover attorneys’ fees and costs under the Anti-SLAPP Act. The court acknowledged that there are other contexts in which one is not considered to be a "prevailing party" unless the court orders some relief, but reasoned that those cases were not controlling because the Anti-SLAPP Act does not incorporate the strict concept of what it means to be a prevailing party that applies in other corners of the law. Instead, it authorizes fee awards to a broader class of litigants, including those who prevail only "in part." The judge reasoned that when a plaintiff voluntarily dismisses their suit after a special motion to dismiss has been filed, fee awards are authorized so long as the special motion to dismiss would have been granted but-for the voluntary dismissal.

In applying that approach, the judge determined that she would have granted the special motions to dismiss because (1) NAS and Clack made a prima facie showing that Jacobson’s suit arose "from an act in furtherance of the right of advocacy on issues of public interest" and (2) Jacobson did not demonstrate that his defamation and related claims were "likely to succeed on the merits."² The judge also considered an alternative approach—that fees might be warranted only when the special motion to dismiss is what prompted the plaintiff’s voluntary dismissal—and concluded that fees would be warranted under that approach as well. The judge reasoned that the voluntary dismissal came just two days after a hearing on the special motions to dismiss where the court hinted it was going to grant the motions, and there was no "new event or information" that could plausibly explain Jacobson’s abandonment of his suit, making it apparent that it was the special motions to dismiss that prompted Jacobson to dismiss his suit.

The court concluded there were no special circumstances that would make a fee award unjust and ultimately ordered Jacobson to pay NAS $428,723 (reflecting a 20% reduction from what NAS reported as its attorneys’ fees) and Clack $75,000. Jacobson now appeals.

II.

Jacobson raises two arguments. First, he contends that a voluntary dismissal extinguishes the ability of defendants to...