Chandok v. Klessig, No. 09-4120 (2d Cir. 2011)
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09-4120-cv (L) Chandok v. Klessig 09-4120-ov(L}, 09-4121-cv(xap) Chandok v. Klessig 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2009 4 5 (Argued: April 12, 2010 Decided: January13 y 2011) Docket Nos. 09-4120-cv(L), 09-4121-cv(xap) 6 7 8 9 MEENA CHANDOK, ph.D., Plaintiff-Appellant Cross-Appellee, 10 11 12 - v. DANIEL F. KLESSIG, Ph.D., 13 14 pefendant-Appellee Cross-Appellant. 15 16 17 Before: JACOBS, Chief Judge, KEARSE and CALABRESI, Circuit Judges. Appeal and cross-appeal from a judgment of the United 18 States District Court for the Northern District of New York that 19 dismissed plaintiff I s defamation suit complaining of defendant 1 s 20 statements 21 misconduct and dismissed defendant I s counterclaim asserting that 22 plaintiff I s 23 governing Strategic Lawsuits Against. Public Participation, 24 Civil Rights Law 25 suggesting that bringing of Affirmed. §§ plaintiff this 70-a et seg. was guilty of scientific suit. violated New York's statute N.Y. See 648 F.Supp.2d 449 (2009). 2 3 4 ROBERT C. WEISSFLACH, Buffalo, New York (Harter Secrest & Emery, Buffalo, New York, on the brief), for PlaintiffAppellant-Cross-Appellee. 5 6 S. 1 PAUL BATTAGLIA, Syracuse, New York (Bond, Schoeneck & King, Syracuse, New York, on the brief), for DefendantAppellee-Cross-Appellant. 7 8 9 KEARSE, Circuit Judge: 10 Plaintiff Meena Chandok, of the United Ph.D., appeals from so much of a 11 judgment 12 District of New York, 13 amended 14 defendant Daniel F. 15 defamatory 16 veracity of Chandok I s 17 research. 18 ("Chandok"), 19 summary 20 Chandok was a limited-issue public figure and that she failed to 21 adduce 22 reasonably conclude that Klessig had acted with "malice," defined 23 as 24 Klessig cross-appeals from so much of the 25 his 26 27 28 * complaint knowledge the and of Joseph M. Hood, Court Judge *, Complaint" Klessig, or for the Northern as dismissed her "complaint") against Ph.D., seeking damages for allegedly by Klessig impugning the accuracy and/or reports of the results of her biochemical Chandok judgment clear District ("Amended statements In States v. Klessig, district court dismissing convincing falsity counterclaim alleging or the 648 F.Supp.2d 449 granted Klessig's motion complaint evidence reckless that from on which disregard Chandok I s the (2009) ground a for jury the for that could truth. judgment as dismissed bringing of this suit Honorable Joseph M. Hood, Senior Judge, of the United States District Court for the Eastern District of Kentucky, sitting by designation. - 2 - 1 violated New York 's 2 Public Participation ("SLAPP") , 3 76-a (McKinney 2009) . 4 for 5 that the anti-SLAPP statute did not apply to the facts of this 6 case. statute against Strategic Lawsuits Against N. Y. Civ. Rights Law §§ 70 a, The district court granted Chandok's motion summary judgment dismissing the counterclaim on the ground 7 On appeal, Chandok contends principally that the district 8 court erred in ruling that she was a limited-issue public figure 9 and had not adduced clear 10 Klessig, in support of that the 11 district court erred in interpreting the anti SLAPP statute. We 12 affirm the dismissal of 13 reasons stated by the district court. We also affirm the district 14 court's dismissal of the complaint, but we choose to do so on 15 grounds that different 16 court. We conclude that under New York law, 17 issues in this diversity action, Klessig's statements were within 18 the scope of the conditional privileges for statements on matters 19 as to which the speaker has a legal or moral obligation to speak 20 or for statements among communicants who share a common interest, 21 and that Chandok did not adduce evidence of fault sufficient to 22 overcome those privileges by a preponderance of the evidence. are and his convincing evidence cross-appeal, contends of malice. the counterclaim substantially for from - 3 - those the adopted by the district which governs the I. 1 BACKGROUND 2 The following description, of events as to which there is 3 no genuine dispute, is taken largely from Chandok's assertions in 4 her court papers, including her Response to Defendant's Statement 5 of 6 dismissing her complaint. 7 record 8 reasonable inferences in her favor. 9 A. 10 Material in Facts the on light Klessig's motion for summary As to Klessig' s motion, most favorable to Chandok judgment we view the and draw all The "NOS" Project and the Allegedly Defamatory Statements Klessig was a senior scientist at, and until May 2003 the 11 president 12 (nBTI"), an affiliate of Cornell University in Ithaca, New York. 13 Beginning in the late 1990s, a research team directed by Klessig 14 was 15 particular, 16 offset attacks by pathogens. 17 plant disease. 18 of, the focusing on Boyce immune on plants' Thompson Institute response mechanisms for Plant in plants production of nitric oxide Research and, in (or "NO") to NO plays a key role in fighting In the latter part of 2000, BTl hired Chandok, a citizen 19 of India, to be a postdoctoral research associate in Klessig' s 20 laboratory. 21 purify a 22 catalyzes the production of nitric oxide. 23 from late August 2004 on, She worked on a project whose goal was to find and nitric oxide synthase ("NOS"), i.e., an enzyme that Chandok contends that Klessig made statements that falsely - 4 - 1 impugned 2 project. 3 the accuracy or veraci ty of her research on the NOS 1. Chandok's Reported Results and the Efforts To Replicate Them 4 On October 20, 2002, Chandok sent Klessig data indicating 5 that she had identified and isolated the protein responsible for 6 catalyzing NOS-like 7 biochemical means i 8 into E. coli and baculovirusi and that she had performed in vitro 9 experiments that confirmed her findings. activity, that she (~, dubbed had "variant pli introduced the or "varP, II by cloned NOS gene She reported that the 10 recombinant protein 11 engineering 12 would have constituted "a significant breakthrough in the field of 13 plant research II 14 and the protein resulting from her genetic recombination) had NOS activity, a result that (Amended Complaint ~ 12). Chandok I s reported results were widely publ icized wi thin 15 the plant-biology community. 16 coauthored by Chandok, Klessig, 17 Klaas the 18 published in May 2003 in the academic journal Cell. 19 article based 20 Klessig, BTl scientist Dr. Sophia K. Ekengren, 21 Martin 22 appeared in the Proceedings of the National Academy of Sciences 23 ("PNAS") 24 25 J. van Wij k of BTl of on the and the They were described in an article and Drs. Cornell same Jimmy ytterberg and Department research, Cornell A. of Plant coauthored Department of A follow-up by Chandok, and Dr. Gregory B. Plant Pathology, in May 2004. Prior to Chandok's report of her discoveries, twice Biology, applied to the National Institutes - 5 - of Health Klessig had ("NIH") for 1 grants to fund NOS research. 2 After Chandok's October 20 report of her findings to Klessig, a 3 revised 4 submi t ted to NIH on October 25. 5 new application consisted almost entirely of Chand ok 's reported 6 data. 7 than $1 million from NIH to fund further NOS research. application, Neither application was granted. cowritten by Klessig and Chandok, was The materials presented in the In mid-2003, Klessig's laboratory received a grant of more 8 In late March 2004, Chandok--who asserts that her working 9 relationship with Klessig by then had deteriorated because of his 10 demeaning behavior toward her (see Chandok brief on appeal at 11; 11 Amended Complaint 12 shortly 13 scientists 14 results that Chandok had reported and that were described in the 15 Cell and PNAS articles. 16 Chandok several 17 replicate her NOS experiments. moved in to ~ 14) - submitted her resignation from BTl and Maryland. Klessig' s times Thereafter, none laboratory were able to of the other replicate the In the following months, Klessig called to ask her to return to Ithaca to help Chandok declined. 18 Klessig also tried many times during that period, without 19 success, to reach Chandok by telephone and e-mail to discuss the 20 research. 21 sent an e-mail to Chandok that stated, in part, as follows: 22 23 24 25 26 27 28 29 30 31 In June 2004, BTl's human resources director Lucy Pola I know that Dan has been trying to reach you about replicating some of the work you have done (I apologize for not being able to tell you exactly what part). I do know that he is asking if you could come help the 3 postdocs in the lab with the procedure as they are unable to replicate. He understands how tricky this procedure was and feels that with your assistance they would be able to do it. He has indicated that he would pay your travel, lodging etc. if you would be willing to come out and help. - 6 - 1 Meena, I know your relationship with Dan is strained and that this may seem like a request that you are uncomfortable with. I also know that you are an excellent scientist and that you understand the importance of being able to replicate results. Please let me know your thoughts on this. 2 3 4 5 6 7 Chandok responded that she "agree [d) 8 that it is important to reproduce results," but stated that 9 10 11 [U] nfortunately, my current commitments are keeping me extremely busy. However, if the situation changes at a future point in time, I shall contact you. 12 After 10 days with no further word from Chandok, Klessig 13 sent her 14 registered 15 continued to "believe [Chandok) did purify an NO synthase protein 16 and that protein is varP (and/or P) or at least that varP is part 17 of the iNOS 18 told her repeatedly, 19 well 20 results on the plant iNOS" 21 scientists had been able to do so. as a letter mail. The June outside [] letter of [, ] June Ithaca, stated 24 results by mid-July, 25 than 26 matter. " Klessig 27 cooperation in 28 results," 29 future job applications. our group or two bye-mail, that, fax, although and Klessig activity," it was, as he had be able to reproduce as your independently, but that none of BTl's 18 at BTl's expense, week 2004, "critical that other scientists within, 23 a 18, [i.e., "inducible" NOS) Klessig's 22 dated letter asked Chandok to return to to assist in the reproduction of her "estimat [ing that) to do stated assisting it should take no longer these experiments and that "in for in return verification of resolve [Chandok's] [her] reported he would provide her with strong recommendations He added, inter alia, that - 7 - the for 1 2 5 [i] f you fail to respond to this letter in a timely manner, you will leave me with little choice but to assume your results are unverifiable and therefore will force me to take the following actions: 6 ¢ I will retract both the Cell and PNAS papers. 7 8 ¢ I will have to contact the INS and retract my April 11, 2002 letter of support for your permanent residency application. 3 4 9 10 13 ¢ I will also have to inform the president of BTl and the government agencies which supported your work (NSF and NIH). A formal inquiry, overseen by NSF and NIH, will ensue. 14 Chandok's response came in the form of a June 30, 11 12 2004 15 letter from her attorney, addressed to the chairman of BTl's board 16 of directors. 17 any 18 characterized Klessig's efforts to contact Chandok as a campaign 19 of "harassment"; that Chandok stood by her research and findings 20 and would welcome any legitimate third-party inquiry; and that if 21 Klessig made 22 would consider those statements defamatory and would sue. The letter stated that Chandok would "not, under circumstances, 23 again work the disclosures with or for Dr. threatened in his Chandok did not return to Ithaca. Klessig" letter, and Chandok Throughout the spring 24 and summer of 2004, the scientists working in Klessig's laboratory 25 tried in vain to replicate the results that had been reported by 26 Chandok. 27 researchers who, after describing various problems encountered in 28 attempts 29 concluded as follows: 30 what Meena recorded in the lab notebook, the patent document, and On July 26, Klessig received an e-mail from one of his to use Chandok's methods and verify her results, "All of our findings are contradictory to - 8 - 1 her Cell and PNAS papers. 2 are reliable." 3 2. Allegedly Defamatory Statements by Klessig In 4 I do not think that her experiment data early August, Klessig discussed Chandok's possible 5 scientific misconduct with BTI's president, David Stern, who began 6 an inquiry. 7 of the coauthors of the PNAS article, met to discuss the Chandok 8 matter. 9 accordance On August 20, Klessig, Stern, Pola, and Martin, one Stern decided to appoint an investigative committee, in with BTI's policy on scientific misconduct, and to 10 consider whether and when to retract the Cell and PNAS papers. 11 was decided that Klessig would notify NIH and the National Science 12 Foundation 13 notify the Department of 14 Research Integrity 15 had been funded by a 16 basis of a subsequent federal grant application, Stern sent ORI a 17 letter dated August 30, 2004, that began as follows: 18 19 20 21 22 23 24 25 26 ("NSF") of the investigation and that Stern would Health and Human Services I (IIORI"). It Office of Because some of Chandok s research I federal grant, and her findings were the As required by 42 C.F.R. §50.103(d), I report the result of an inquiry into possible scientific misconduct on the part of a postdoctoral fellow formerly employed by BTl. The research in question was funded in part by the N.I.H . . . . and some of the data in question were furnished as part of a grant proposal which resulted in the above-mentioned award. My determination is that there is sufficient evidence to proceed with an investigation . 27 The letter proceeded to summarize that evidence, 28 Stern1s interviews with BTI scientists who had tried and failed to - 9 - which included 1 replicate Chandok's results and the fact that "Chandok . . . did 2 not readily provide them with key experimental materials. 3 I! Klessig sent letters dated August 30, 2004 to NIH and NSF 4 officials stating 5 researchers 6 reported by Chandok and had been unsuccessful. 7 that the recent evidence 8 some of her data. had that been for several attempting II to months his reproduce the results strongly suggests that she falsif ied II Klessig prepared 10 and sent to Stern, 11 and PNAS articles drafts of statements to retract those articles. 12 The drafts stated, with slight variations in wording, that members 13 of the Klessig laboratory conducting further experiments had been 14 unable to replicate the results reported in the Cell paper and 15 that 16 variant P" may have been 17 retraction that was eventually 18 Klessig, Martin, and Ekengren read, in part, as follows: that Pola, NOS Each letter stated From late August through mid-September, 9 postdoctoral inability and/or Chandok I s coauthors of the Cell suggested II that the data on "recombinant fabricated by the lead author. I! [s] ent to PNAS [on] I! 9/14/04" by 19 20 21 22 23 24 25 Since publication of th[e Cell] paper, other members of the Klessig laboratory have been unable to repeat the results with recombinant variant P. In addition, other discrepancies have come to light that suggest data on the recombinant variant P presented in the Cell paper may have been fabricated by M.R. Chandok-hence the Cell paper is being retracted. 26 27 28 29 30 31 32 33 For this reason and the fact that we are no longer confident in much of the data in this paper, we hereby retract Chand ok et al., 2004. M.R. Chandok does not concur with this retraction . . . . The experiments that produced these data were performed by M.R. Chandok and are now suspect. We deeply regret this incident and sincerely apologize to our colleagues. - 10 - The 1 A September 2 stating that Klessig had contacted PNAS about the retractions of 3 the Cell 4 author, a former post doc in [Klessig's] lab, fabricated the data 5 and spiked the samples to indicate iNOS activity.!! 6 appears to reflect a communication by Klessig, Chandok imputes the 7 charge of "fabricat[ion] II to Klessig (the IIImputed Statement"). 2004 e-mail and PNAS articles, On October 6, 8 9 17, plant disease, 2004, from one said that PNAS editor "[i] t to another, appears the first As this e-mail at a conference in Madrid, Spain, on attended by many of the leaders in the study of 10 plant pathology, Klessig announced the impending publication of 11 the 12 indicate that he discussed Chandok's work, in part, as follows: retractions. 13 14 15 16 17 18 19 20 His notes in preparation for the conference Since publication of this work in in 2003 several new postdocs have joined our group to study varP or the pathogen- inducible NOS. To date they have not been able to repeat the results with the recombinant variant P that were reported. In addition, other discrepancies have very recently come to light that strongly suggest that the data on the recombinant variant P is [sic] unreliable. 21 Shortly 22 fellow scientists who were interested in NOS research and had made 23 contributions to Klessig' s 24 conference he had announced the retractions of the 25 articles in light of his researchers' 26 confirm Chandok's reported NOS results. 27 after the Madrid A November 5, conference, research, Klessig sent e-mails to informing them that at the and PNAS inability to replicate or 2004 article in Science magazine reported It quoted 28 that the Cell and PNAS articles had been retracted. 29 Klessig as saying that the data reported in those articles were 30 "shaky" and that it was "important that the rest of the scientific - 11 - 1 community not base their research on this 2 that we are no longer confident in." 3 [sic] unreliable data The BTl Scientific Misconduct Investigation Committee 4 "Committee"), appointed by Stern in September 2004, 5 consider, 6 researchers to replicate Chandok IS results, 7 report 8 Chandok 9 furnished, inter alia, of a (a) successful hired to the (c) and proceeded to futile past efforts of Klessig I s effort perform (or by Abgent, experiments unsuccessful (b) a using new a March 11, 2005 laboratory reagents efforts by results reported by Abgent. that that she Klessig's 10 laboratory to replicate the In its 11 final report, issued in June 2005, the Committee stated that" [i]t 12 should be noted that the verification by Abgent was not completely 13 independent since Dr. 14 perform NOS activity assays," and it found the evidence as a whole 15 inconclusive: 16 committee 17 fabrication, but 18 achieved the results 19 Chandok's 20 commonly accepted scientific practice by Dr. 21 her 22 resul ts. " 23 important constructs reported in a high profile publication and 24 the 25 absence of corroborating detailed research records was judged to 26 be grounds for good faith suspicion of scientific misconduct." Chandok had supplied the reagents used to "Based on the available evidence, the investigating found no conclusive also procedures, "failures It to no evidence conclusive reported." finding maintain stated that of data evidence alteration that Dr. or Chandok The Committee was critical of "several records "[t] he and egregious to of Chandok," including archive research inability to recover the most inability to reproduce published results, - 12 - breaches combined with the 1 B. The Claim, the Counterclaim, and the District Court's Rulings 2 Chandok commenced the present action against Klessig in 3 August 2005 seeking damages in excess of $75,000 for defamation, 4 alleging, 5 false 6 research, thereby causing significant damage to her reputation in 7 the 8 statements 9 Chandok" in a single cause of action, that Klessig made numerous statements scientific as to the community. were made "out (Amended Complaint ~ (id. 36) that accuracy The of ~ or veracity complaint ill will alleged and spite of her that NOS those towards Dr. 35) and "with actual and common law they were made "[i]n retaliation for 10 malice" 11 [Chandok' s] 12 (id. 13 [Klessig] knew that these statements were untrue and/or recklessly 14 disregarded 15 Although the statements of which Chandok complained were not set 16 out in the complaint, during discovery she specified 23 statements 17 from August 26, 18 were false and defamatory (the "Statements"). 19 statements quoted in Part I.A.2. above, as well as various drafts 20 and preliminary statements sent by Klessig to Stern and Pola, and 21 e-mails from Klessig to other fellow scientists. 22 F.Supp.2d 23 Statements) . 33) not assisting alia, [Klessig] in continuing his research" and that "[a] t the time of making these allegations, i whether at 2004, 452-55 Klessig, 24 25 ~ i such statements were true" ~ (id. 35) . through January 25, 2005, that she claimed & nn.3-17 (summarizing These included the See Chandok, 648 each of the in answer to Chandok' s complaint, denied, 23 inter that he had uttered any false statements or any statements - 13 - l o u t of spite, ill will, or malice, or with reckless disregard for 2 the truth. 3 4 5 6 7 8 9 10 11 12 13 (See Amended Answer " 33-36). He also denie[d] that he uttered any statements that injured plaintiff's reputation except (a) such statements as may have described truthfully and accurately (i) her research, (ii) his and BTl's inability to replicate her test results and to verify the existence of the critical varP expression vectors that plaintiff claimed she had used and (iii) other aspects of her conduct and performance, and (b) such other statements as were and are true and/or privileged and/or otherwise non-actionable. (ld., 27.) 14 In addition, Klessig asserted including costs and attorneys' a counterclaim 15 damages, 16 bringing the present action. 17 the meaning of the anti-SLAPP statute, N.Y. Civ. Rights Law 18 et seq., 19 the NOS project made her a "public applicant" 20 that from Chandok for 21 funds were expended in compliance with federal law and to report 22 suspected 23 Chandok's defamation claim against Klessig was materially related 24 to Klessig' s 25 funds 26 without a substantial basis 27 actual knowledge that she had falsified data in connection with 28 the NOS project and the results she had claimed to have achieved 29 regarding 30 defamation The counterclaim alleged that within Chandok's participation in obtaining federal Klessig had a in fees, seeking reports the NOS to funds for (see id. " BTl and ORI (see id. and comments on Chandok' s project claimed NOS claim 70-a 60-62); continuing obligation to ensure that those misconduct the § (see id. (see id. activityn therefore , 63) i use of that that federal her claim was , 66), given that she "had {id. "constitute[d] - 14 - , 64); , 67} a i and that her SLAPP suit in 1 violation of New York Civil Rights Law 2 , 65). 3 §§ 70-a et. seq." (id. Following a period of discovery, Klessig moved for summary 4 judgment dismissing Chandok's defamation claim, arguing, inter 5 alia, 6 were neither false nor defamatory because they merely expressed 7 opinions, which were incapable of being proven false and were thus 8 protected by the First Amendment and unactionable under New York 9 law. that several of the Statements of which Chandok complained He also argued that the Statements were part of a public 10 controversy and that Chandok could not prevail because she could 11 not 12 knowledge of 13 that many of the Statements were "published" only to individuals 14 who helped Klessig write the documents in which the Statements 15 appeared, and publication among coauthors is not actionable under 16 New 17 absolutely or qualifiedly privileged. establish York that Klessig made any of the Statements with falsity or with reckless disregard for the truth; law; and that any other Statements he made were Chandok moved for summary judgment dismissing Klessig' s 18 19 counterclaim. 20 to NOS research, 21 "public applicant" within the meaning of the anti-SLAPP statute. 22 Noting that federal funding was not a prerequisite she contended principally that she was not a In Chandok, 648 F.Supp.2d 449, the district court granted 23 both 24 motions for summary judgment. With respect Chandok's complaint, the court stated that 25 26 27 28 sides' [t]o establish a claim of defamation under New York law, a Plaintiff must establish 1) that the statement averred was defamatory; 2) that the statement was published by the defendant; 3) that the statement was - 15 - to communicated to a party who was not the plaintiff i and 4) the resultant injury to the plaintiff. 1 2 3 rd. at 456. The court noted, however, that a person's individual 4 interest 5 society's interest in fostering free speech, as reflected in the 6 First Amendment, especially in cases involving public figures and 7 public issues. 8 figure cannot prevail on a defamation claim unless, in addition to 9 the above elements, she establishes "with convincing clarity" that in protecting her See id. reputation must at 458. Thus, be weighed against it noted that a public 10 the statements were false and that the defendant published the 11 statements with "actual" malice, 12 reckless disregard for the truth," id. at 459. 13 i.e. / "knowledge of falsity or The district court ruled that "Chandok is a limited issue 14 public figure" in the area of plant biology. 15 there is an international community of plant biologists, see id. 16 at 458 59, 17 within the plant biology community," 18 that 19 criticism, and for good reason/" id. at 458, as the free exchange 20 of ideas is indispensable to the progress of scientific research. 21 The 22 articles publishing her reports of her findings, 23 interjected herself into a public controversy by way of creating 24 the 25 Klessig' s 26 could and that Chandok admitted that "[slcientific court very not articles reasoned subject of that are Chandok, the she was . at 459. inherently as controversy/" It noted that rd. the id. "well known The court stated subject lead at to author robust of the had "willfully 459, and that constitutional privilege to speak on the matter thus be overcome unless Chandok - 16 - proved with convincing 1 clarity that his statements were false and had been made with 2 knowledge of falsity or reckless disregard for the truth. 3 Al though the court found that each of the 23 Statements 4 that Chandok alleged defamed her was "reasonably susceptible to a 5 defamatory meaning, 6 record that lI[i]t is not a reasonable inference ll that the reported 7 II 8 result II either IIwas substantially false or that Dr. Klessig knew 9 that it was false, inabili ty of . at 457, it concluded after reviewing the II numerous scientists to duplicate [Chandok IS] or certainly that the references to such data 10 were made with reckless disregard for the truth,lI 11 see also id. at 459 n.1a ("In fact, Plaintiff never contends that 12 Defendant's comments that numerous other scientists were unable to 13 duplicate 14 appear to take issue with the factual portions of the Statements, 15 only 16 implications 17 could not rep I icate the results, the original results must have 18 been fabricated or falsified. II) . The court concluded as a matter 19 of law that Chandok could not prove falsity or malice by clear and 20 convincing evidence and that Klessig was thus entitled to summary 21 judgment dismissing the complaint. 22 23 24 25 26 27 28 29 with Plaintiff's the of Turning results veracity those to of are Defendant's facts--that Klessig's false. if id. at 459-60; Plaintiff conclusions numerous counterclaim, the does as to not the other scientists district court identified three elements of a claim under the anti-SLAPP statute: 1) there must be a public application or petition, 2) the public applicant or permittee of that application must file a lawsuit against a person who is "materially related to any efforts of the defendant to report on, comment on, rule on, challenge or oppose such application or permission, II and 3) that - 17 - the lawsuit must without merit. 1 2 be, at a minimum, 3 Id. at 460 4 concluded that Klessig's counterclaim should be dismissed because 5 the first element was not satisfied: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 (quoting N.Y. Civ. Rights Law substantially §§ 70, 76). The court The defining aspect of a public application or petition, is that it is a required government process that must be satisfied to perform some other task. See Harfenes v. Sea Gate Assoc., Inc., 167 Misc. 2d 647, 647 N.Y.S.2d 329, 331 (Sup.Ct.N.Y.County, 1995) . Receipt of a grant may certainly assist in conducting research, but research can proceed without this specific grant. . . . [R] equests for money, without other restrictions, are not public applications. Id. As there is no public application, there can neither be a public applicant nor a commentator to the same. Accordingly, there is no cause of action under the SLAPP statute. Chandok, 648 F.Supp.2d at 460-61. 20 This appeal and cross-appeal followed. 21 II. DISCUSSION Summary judgment is appropriate if "there is no genuine 22 23 issue as 24 judgment as a matter of law." 25 the undisputed facts reveal that there is an absence of sufficient 26 proof as to one essential element of a claim, any factual disputes 27 with respect to other elements become immaterial and cannot defeat 28 a 29 Catrett, 30 1372, 1379 (2d Cir. 1992), cert. denied, 508 U.S. 909 (1993). motion to any material for summary 477 U.S. 317, fact" and "the movant Fed. R. Civ. P. 56(c) (2). judgment. 322-23 is entitled to See, (1986) - 18 - i ~, Where Celotex Corp. Burke v. Jacoby, v. 981 F.2d 1 We review the grant of summary judgment de novo, drawing 2 all reasonable factual inferences in favor of the party against 3 which judgment was granted. 4 New York v. Maverick Tube Corp., 595 F.3d 458, 468 (2d Cir. 2010) 5 Konikoff v. Prudential Insurance Co. of America, 234 F.3d 92, 97 6 (2d Cir. 7 summary 8 merits, and all reasonable inferences are drawn against the party 9 whose motion is under consideration. 2000) (IlKonikoff"). judgment, 10 Trust Co. 11 Schwabenbauer v. 12 A. each party1s Law Debenture Trust Co. of When both motion sides have moved is examined See, ~, of New York v. Maverick Tube Corp., on its i for own Law Debenture 1981) . 13 See,~, Board of Education, 595 F. 3d at 468 i 667 F.2d 305, 314 (2d Cir. Chandok1s Appeal 14 Chandok contends principally that the district court erred 15 in ruling that she was a limited-issue public figure and that her 16 report of her research results was a matter of public concern, the 17 premises that led the court to impose on her an unduly demanding 18 standard of proof, 19 of doing so by clear and convincing evidence. 20 that even if those premises were correct, she presented sufficient 21 evidence to create genuine issues to be 22 knowledge of the truth and/or reckless disregard for the falsity 23 of his Statements. 24 the questions of whether Chandok was a limited-issue public figure 25 or whether the burden of proving "actual" malice and She also contends tried as to Klessig 1s For the reasons that follow, we need not reach Klessig 1s statements concerned - 19 - a matter of public 1 interest, 2 support in the record, see, 3 do 4 Chandok's defamation claim was appropriate because whether or not 5 Klessig' s 6 concern, 7 respect to that issue, 8 state-law qualified privileges for communications on a matter as 9 to which Klessig had a duty to speak and/or for communications to 10 persons with whom he had a common interest in the subject matter; 11 those 12 preponderance 13 common-law malice, 14 adduce evidence sufficient to defeat those privileges even under a 15 preponderance standard. so for here we on a and ~, constituted whether or not of speech a judgment dismissing on an Chandok was be overcome evidence--of i. e., Historically, Summary a issue of public public figure with the Statements were wi thin the scope of cannot the is Konikoff, 234 F.3d at 98, and we simpler ground. Statements privileges 16 may affirm on any ground for which there without ther a showing--by "actual" malice a or spite or ill will i and Chandok did not defendant was held strictly liable See generally Gertz v. Robert Welch, for Inc., 418 U.S. 17 defamation. 18 323, 19 N.Y.2d 196, 20 malice was presumed, 21 [defamatory] publication" even when "the defendant harbored no ill 22 will toward the plaintiff, and honestly believed what he said to 23 be true." 24 1971) . 25 26 346 (1974) i 199, W. Chapadeau v. Utica Observer-Dispatch, 379 N.Y.S.2d 61, Prosser, 64 (1975). (1964), 38 Under state laws, "implied by the law from an intentional The Law of Torts Beginning with New York Times Co. 254 Inc., § 113, at 772 v. Sullivan, (4th ed. 376 U.S. the Supreme Court ruled that the First Amendment of - 20 - 1 the United States 2 defamation laws insofar as they are applied to speech on matters 3 of public concern. 4 constitutional guarantees" require that a public official not be 5 allowed 6 relating to his official conduct without establishing by clearly 7 convincing proof that the defamatory statement was published with 8 lIactual" malice, which the Court defined to mean IIwith knowledge 9 that it was false or with reckless disregard of whether it was to Constitution limits the reach of state In New York Times, the Court held that recover damages for false defamatory [t]he statement 10 false or not. 11 390 U.S. 12 unless 13 entertained serious doubts as to the truth of [the] publication") 14 Garrison v. Louisiana, 379 U.S. 64, 74 (1964) 15 published 16 publication's] probable falsityll). II 727, ¢ 731 statement 17 at 279-80. a II (1968) was with II See also St. Amant v. Thompson, (constitutional privilege not overcome published [a] high while lithe degree In Curtis Publishing Co. v. of Butts, defendant in fact i (not overcome unless awareness 388 U.S. [the of 130 (1967), 18 the Court applied this principle to plaintiffs who were "involved 19 in 20 interest" id. at 134, and who, though not public officials, were 21 "public 22 amount 23 publications" because of the positions they held and/or because of 24 their 25 personal it [ies] 26 controversy, issues in which the public figures," of has persons independent public a who justified and "commanded interest at IIpurposeful activity amounting to a II into ¢ the at 154-55. 'vortex' See, 21 - of §...:..fL., the a important substantial time of the thrusting of [their] important public Gertz, 418 U.S. at 342, 1 344-45 (persons 2 achievements or the vigor and success with which they seek the 3 public I s 4 are subj ect to the New York Times Co. 5 and convincing proof of knowledge of falsity or reckless disregard 6 for the truth) . attention, In 7 "who, by reason of the notoriety of their are properly classed as public figures" Gertz, the Court held and standard requiring clear that the states "may not, II 8 consistent with the First Amendment, 9 or punitive damages" without a showing that the defendant was at 10 fault, 418 U.S. at 349, by a private individual who is involved in 11 an issue of significant public interest, 12 Bradstreet, 13 (1985) 14 held 15 private individual could obtain from a publisher for a libel that 16 involved a matter of public concern. II) ¢ Inc. v. (plurality that 17 In the Dun opinion) Amendment Bradstreet, matters 19 Amendment 20 violating the First Amendment, 21 punitive damages II 22 'actual malice' 23 involve matters 24 of purely id. Inc" Court importance. It in a the damages noted ruled concern 749, 751 ("Gertz that that is state public of laws permit recovery for defamation action without when of private see Dun & 472 U.S. Bradstreet II) & restricted the at 347; that speech the defamatory concern. II Id. less a on opinion) . 26 are ("Dun 18 25 that Greenmoss Builders, First & "permit recovery of presumed may, without IIpresumed and "a showing of statements at First 763 do not (plurality For purposes of this opinion, we assume, without deciding, that Klessig' s Statements did not deal with a - 22 - matter of public 1 concern, 2 that, 3 constitutional, 4 applicable. 5 properly granted dismissing her claims because the evidence she 6 adduced 7 imposed in these circumstances by New York law. therefore, 8 9 that Chandok was not a limited-issue public figure, the onerous burden of proving i. e. , II malice by clear and convincing evidence was not We was "actual, and nonetheless insufficient conclude to meet that the summary less judgment was demanding standards New York law allows a plaintiff to recover for defamation by proving that the defendant third party a 11 applicable 12 caused the plaintiff special harm, 13 not protected by privilege. 14 256, 15 New York 16 although defamatory, 17 of liability in a defamation action. 18 211, 19 qualified privileges to at least two categories of statements that 20 are pertinent to the present case. 265-66 218, (2d Cir. false, a defamatory statement of fault, that was to 10 level of fact published was made with the and either was defamatory per se or so long as the statement was Albert v. Loksen, 239 F.3d See,~, 2001), and authorities cited therein. But "[p] ublic policy mandates that certain communications, 405 cannot serve as the basis for the imposition N.Y.S.2d 1, 4 Toker v. Pollak, 44 N.Y.2d 1I (1978). New York law accords 21 A statement is generally "subject to a qualified privilege 22 when it is fairly made by a person in the discharge of some public 23 or private duty I 24 8 N.Y.3d 25 (internal quotation marks omitted)i see, ~, 26 42 74 0 744 N. Y . 2 d 359, 2 72 , legal or moral. 365, 2 79 834 I 3 97 Rosenberg v. 11 N.Y.S.2d N . Y. S . 2 d 23 - 494, 497 I MetLife, (2007) I (IIRosenberg") Stukuls v. ( 197 7 ) Inc. State, ( " S t ukul s II ) 1 (this privilege applies "though the duty be not a legal one, but 2 only a moral 3 quotation 4 physician who believed his assistant had stolen patient files, to 5 "an official body charged with responsibility for consideration 6 and processing of complaints of professional misconduct on the 7 part 8 [this] 9 520, 457 N.Y.S.2d 221, 222 (1982) or social duty of imperfect obligation" marks omitted)). For of physician's assistants, qualified privilege." 10 In letter "subj ect Buckley v. from a at a minimum to Litman, 57 N.Y.2d 516, ("Buckley"). a 11 communication made by one person to another upon a subject in 12 which both have an interest." 13 429, 14 quotation marks omitted) 15 457 N.Y.S.2d at 222-23. 16 communication 17 communicating has an interest made 18 corresponding 42 19 N.Y.S.2d at 744 20 In some instances the common-interest privilege may overlap the 21 moral-duty 22 communicate 23 the[ speaker] 24 interest 25 (internal quotation marks omitted). 26 the physician who believed his assistant had stolen patient files, 590 in a was II a to 437, addition, example, (internal "qualified[] N.Y.S.2d on 857, i "any Liberman v. 862 see, privilege (1992) extends Gelstein, 80 N. Y. 2d ("Liberman") (internal Buckley, 57 N.Y.2d at 520 21, ~, This privilege encompasses a defamatory subject interest." matter Stukuls, in which the party to a person having a N.Y.2d at 278-79, 397 (emphases and internal quotation marks omitted). privilege, for one may have a "moral duty to . . knowledge and information about a person in whom ha[s] such an interest person," id. to at - 24 - another 279, 397 who also N.Y.S.2d has an at 744 Thus, in Buckley, Dr. Litman, 1 had a qualified privilege for communicating that information to a 2 fellow physician who had handled the practice of Dr. Litman while 3 the 4 employment. latter 5 was away and with whom the assistant was seeking See 57 N.Y.2d at 520-21, 457 N.Y.S.2d at 222-23. A qualified privilege may be overcome by a showing either 6 of "actual" malice 7 reckless disregard as to whether it was false) 8 malice. 9 863; Rosenberg, 8 N.Y.3d at 365, 834 N.Y.S.2d at 497. 10 malice "mean [s] spite or ill will." 11 590 N.Y.S.2d at 862. 12 malice and constitutional 13 the 14 plaintiff, 15 truth." See, SL..9..:.., former 16 (i.e., knowledge of the statement's falsity or Liberman, 80 N. Y. 2d at 438, Liberman, 590 N. Y . S. 2d at Common-law 80 N. Y. 2d at 437, liThe critical difference between common-law focuses the or of common-law [i. e., on latter the on II actual II ] defendant's the defendant's mal ice is that attitude toward the toward the attitude Konikoff, 234 F.3d at 99. As for what is needed to prove "actual" malice, 17 a 18 true and being highly aware that it is probably false. 19 latter establishes 20 Liberman, 21 418 U. S. 22 doubts as 23 falsityll "there is critical difference between not knowing whether something is 24 reckless 80 N.Y.2d at 438, at 334 n.6 disregard in a Only the defamation action." 590 N.Y.S.2d at 863; see also (equating reckless disregard with "' serious to the truth' and II II subj ecti ve awareness of probable (quoting St. Amant, 390 U.S. at 731)). Further, while either "actual ll malice or common-law malice 25 IIwill suffice to defeat a conditional privilege, 26 N.Y.2d at 438, 590 N.Y.S.2d at 863, common-law malice will defeat - 25 - II Liberman, 80 1 such a privilege only if it was II' the one and only cause for the 2 publication, 'II id. at 439, 3 42 4 Loksen, 5 Thus, 6 conclude that ll spite or ill will lI'was the one and only cause for 7 the publication'lI is "a triable issue. 8 N.Y.2d at 439, 590 N.Y.S.2d at 863 (quoting Stukuls, 42 N.Y.2d at 9 282, 397 N.Y.S.2d at 746). N.Y.2d at 282, 397 590 N.Y.S.2d at 863 N.Y.S.2d at 239 F.3d at 272 (same) i Konikoff, as to common-law malice, 10 746); (quoting Stukuls, ~, see, Albert v. 234 F.3d at 98 (same). "only if a jury could reasonably IIUnlike situations in which the raised. II Liberman, 80 'actual malice' standard 11 is constitutionally imposed and must therefore be proved by 'clear 12 and convincing' evidence, 13 New York, the plaintiff need only establish 'actual malice' by a 14 preponderance of the evidence." 15 273. Preponderance is the normal quantum of proof applicable in 16 civil cases, 17 suggests that more than a preponderance is required to establish 18 common-law malice. 19 and none . . . to defeat qualified privilege in of the Albert v. New York Loksen, cases 239 F.3d at discussed above Within this framework, we conclude that all of Klessig's 20 Statements were protected by one or more 21 Several were subject to qualified privileges for statements that 22 Klessig had a legal and/or moral obligation to make. 23 obligations, the fact that some of the NOS research was funded by 24 federal 25 pertinent 26 Federal moneys meant agencies regulations that of Klessig suspicions defined was of state-law privileges. required scientific II [m] isconduct" - 26 to or II As to legal inform the misconduct. [m] isconduct in 1 [s] cience" to include "fabrication, 2 practices 3 accepted within the scientific community for. 4 reporting research, 5 that any entity applying for a research grant establish procedures 6 "for investigating and reporting instances of alleged or apparent 7 misconduct 8 are supported with funds made available under the 9 Service] Act,1I id. that seriously deviate 42 C.F.R. II § "falsification," and lIother II from those are commonly conducting or 50.102 (2003), and they required involving research or research activities that 50.101 (emphases added). § that [Public Health Thus, when Klessig 10 wrote to officials of NIH and NSF stating that lI[elvidence 11 recently emerged that strongly suggests that [Chandok] falsified" 12 some, 13 was 14 formally filed his allegations against Chandok with the Scientific 15 Misconduct 16 reporting requirement, 17 inquiry 18 misconduct, see id. 19 his Statements to the Committee, NIH, and NSF, Klessig was acting 20 in accordance with a legal duty. 21 most, [had] or all of her reported data on recombinant varP, he fulfilling a legal Investigation and/or Moreover, obligation. Committee, he was when complying Klessig with the for the regulations required an immediate investigation §§ Similarly, into allegations 50.101, 50.103(d). of possible Accordingly, in making in light of the facts that Klessig had twice 22 applied to NIH fori and twice failed to be awarded, federal funds 23 for his NOS research, and that NIH granted Klessig's laboratory 24 funds $1 25 receiving his third application, 26 and consisted almost exclusively of Chandok I s (in excess of million) for NOS research only after which was cowritten by Chandok - 27 - reported datal we 1 conclude 2 regulations, 3 NIH of the possible fabrication of the data on which, clearly, it 4 had relied. 5 that even had there been no federal reporting Klessig would have had a moral obligation to inform Further I Klessig plainly had a moral obligation to share 6 his concerns about Chandok's reported results with BTl's president 7 Stern, 8 Cell 9 scientist, and Martin, ytterberg, with BTl's responsible personnel officer Pola, and PNAS articles' coauthors Ekengren, who with the was a BTl and van Wijk, who were members 10 of the faculty at Cornell. 11 both 12 imperiled by the fact that they were explicitly associated with 13 scientific articles that may have been predicated on fabricated 14 research results or fraudulent 15 qualified privilege applies to at least the nine Statements sent 16 to one 17 several of these Statements were merely drafts of the retraction 18 statements that were to be sent to Cell and PNAS by the respective 19 articles' coauthors other than Chandok. institutions and or more of all The reputations and credibility of of these individual reporting. these BTl and Cornell scientists were The moral-obligation recipients. Indeed, 20 We note also that Klessig's Imputed Statement to the PNAS 21 editor and the formal retraction sent to PNAS too fell within the 22 qualified 23 obligation to make. 24 and 25 veracity of 26 those doubts rightly felt that they owed it to PNAS--and to any privilege having for developed statements that Klessig had a moral Having caused PNAS to publish the article, serious its contents, doubts about the accuracy or Klessig and his coauthors who shared - 28 1 fellow scientist who might otherwise base his or her research on 2 those reported data- -to make known their views of the Cell and 3 PNAS articles' unreliability. 4 Finally, many of Klessig's Statements were within the 5 scope of the New York qualified privilege for 6 matter of common interest among communicants. 7 Stern, Pola, Ekengren, Martin, Ytterberg, and van Wijk, discussed 8 above, 9 privilege, in addition were to within being the within the common-interest statements on a His Statements to moral-obligation privilege. The 10 remaining eight Statements of which Chandok complains were e-mails 11 sent 12 institutions, who shared his interest in NOS research, and some of 13 whom 14 e-mails, 15 reproduce Chandok 1 s 16 scientists that that inability and other recent evidence "strongly 17 suggest that the data on the recombinant varP," reported in the 18 2003 Cell article, 19 been fabricated" or "had to be falsified because [Chandok] could 20 not have made the protein," or that Klessig had come to believe 21 that she 22 to colleagues with whom he had a common interest in NOS research, 23 these e-mailed statements too were qualifiedly privileged. 24 by Klessig had made to fellow contributions scientists, to Klessig' s at Cornell research. or In other these Klessig stated that his researchers had been unable to 11 reported results, and he warned his fellow were "unreliable" or "falsified" or "may have [n]ever had the recombinant version." Thus, As communications all of Klessig 1 s Statements were privileged under 25 New York law in the absence of a showing by Chandok that they were 26 motivated by "actual" or common-law malice. - 29 - 1 to As lIactual ll malice, the record does not contain 2 evidence from which a rational juror could find by a preponderance 3 of the evidence either that Klessig knew the Statements were false 4 or 5 months, 6 replicate Chandok's reported results; 7 failed. 8 difficult and opines that those scientists were simply less able 9 than she, that opinion, even if warranted, is plainly insufficient 10 to permit a jury to find that Klessig acted in reckless disregard 11 of the truth. 12 found that Chandok's record-keeping practices with respect to her 13 research results were egregious, hampering the duplication of her 14 reported efforts and the confirmation of her reported findings. 15 Klessig repeatedly importuned Chandok to return to Ithaca to help 16 replicate her results; 17 light of (a) Chandok's acknowledgement that it was important to be 18 able to replicate reported scientific results, 19 dispute 20 independently to replicate or confirm Chandok's reported results, 21 (c) 22 discuss the research with Chandok and repeatedly implored her to 23 assist 24 refused 25 corroborating details in Chandok s 26 rational juror could find that Klessig's Statements with regard to that the he acted Klessig in had Although as to at least Chandok disregard three argues for the scientists truth. For attempting to it is undisputed that they that the experiments were The Scientific Misconduct Investigation Committee to the undisputed his reckless it fact fact researchers, assist is undisputed that in that that (d) their other Klessig the repeatedly I - 30 - and In (b) the lack of any scientists undisputed efforts, she refused. fact (e) were unable attempted that the to Chandok absence of records of her research, no 1 the retraction of the 2 Chandok's reported results were "suspect," "unreliable," and "may 3 have been fabricated, 4 Statements were false or with reckless disregard for their truth. 5 Nor does the II and PNAS articles on the ground that were made either with knowledge that the record permit an inference of common-law 6 malice. In light of the efforts made by Klessig to have the 7 resul ts 8 requests that she visit Ithaca to help in the replication effort, 9 and given the importance of NOS research, the need for independent 10 verification of important scientific announcements, and the stakes 11 of the various institutions and individual scientists in their 12 reputations collaborators 13 unverifiable reported results, 14 that Klessig I s 15 will. reported by Chandok replicated, We 16 as in the including his publication no rational of repeated Chandok's juror could conclude Statements were made solely out of spite and ill conclude or that Chandok 17 either lIactual" 18 genuine issue 19 20 B. trial. malice to adduce Summary sufficient evidence of complaint was properly granted. for common-law failed judgment to create dismissing a her Klessig's Counterclaim 21 Klessig contends that Chandok's present action constitutes 22 a SLAPP suit, arguing that her participation in the application to 23 NIH 24 applicant II 25 statute provides, in part, that for federal funding for NOS research made her a within the meaning of the anti-SLAPP statute. - 31 - "public That 1 2 3 4 5 6 7 8 [a] defendant in an action involving public petition and participation, as defined in paragraph (a) of subdivision one of section seventy-six-a of this article, may maintain a[] . counterclaim to recover damages, including costs and attorney's fees, from any person who commenced or continued such action, N.Y. Civ. Rights Law 9 10 11 12 § 70-a(I), if that action was commenced or continued without a substantial basis in fact and law and could not be supported by a substantial argument for the extension, modification or reversal of existing law, 13 id. 14 public petition and participation,'" 15 action 16 permittee." 17 applicant or permittee" as § 18 19 20 21 22 23 24 25 70-a (1) (a) . Section 76 -a defines "[a] n ' action involving in pertinent part, as "an for damages that is brought by a public applicant or Id. § 76-a (1) (a) The statute defines "public any person who has applied for or obtained a permit, zoning change, lease, license, certificate or other entitlement for use or permission to act from any government body, or any person with an interest, connection or affiliation with such person that is materially related to such application or permission. Id. § 76 -a (1) (b) The (emphases added) . district court ruled that Klessig's counterclaim 26 should be dismissed on the ground that Chandok was not a public 27 applicant 28 was not a prerequisite to her NOS research. 29 30 31 32 33 34 35 36 or permittee because government permission or support We agree. The New York Court of Appeals has noted that the enactment of the anti-SLAPP statute in 1992 was prompted by a rising concern about the use of civil litigation, primarily defamation suits, to intimidate or silence those who speak out at public meetings against proposed land use development and other activities requiring approval of public boards. Termed SLAPP suits--strategic lawsuits against public - 32 - participation--such actions are characterized as having little legal merit but are filed nonetheless to burden opponents with legal defense costs and the threat of liability and to discourage those who might wish to speak out in the future . . 1 2 3 4 5 6 600 West 115th Street Corp. v. Von Gutfeld, 7 n.1, 8 the anti-SLAPP statute was 589 N.Y.S.2d 825, 9 10 11 12 13 828 n.1 (1992). 80 N.Y.2d 130, 137 Accordingly, noting that specifically designed to protect those citizens who, usually before a government agency, publicly challenge applications by developers or other businesses for environmental and land use permits, leases, licenses or other approvals, 14 Harfenes v. Sea Gate Association, Inc., 167 Misc.2d 647, 650, 647 15 N.Y.S.2d 329, 16 Harfenes court held that a homeowners' association that had sought 17 a 18 become a public applicant within the meaning of the statute. 19 court reasoned that an application for a government loan was not 20 an application for an "'entitlement for use or permission to act 21 from [a] government body, '" loan 331 from the (Sup. Ct. N.Y. Co. 1995) Small (emphasis added), Business Administration had not the thereby The id. at 653, 647 N.Y.S.2d at 333. 22 Uniformly, the New York courts have found that the persons 23 properly alleged to be public applicants within the meaning of 24 the 25 required government permission. 26 70 27 (building use permit was required) 28 187, 29 operate 30 Town Board, 22 A.D.3d 587, 588-89, 591, 802 N.Y.S.2d 221, 222-23, anti-SLAPP A.D.3d 194, 793, statute 79394, were 894 866 N.Y.S.2d 267, an airline was persons whose See,~, N.Y.S.2d 521, 274 required) i proposed Novosiadlyi v. James, 522 Singh v. - 33 - (2d Dep't Sukhram, (2d Dep't 2008) i actions 2010) 56 A.D.3d (permission to Related Properties, Inc. v. 1 225 (2d Dep't 2005) 2 Inc. v. Clark, 2004 WL 690191, at *7 (N.Y. Sup. Ct. N.Y. Co. Mar. 3 31, 4 Buildings "was a prerequisite to the activity carried out by the 5 plaintiff to which the defendant Clark was opposed"); Street Beat 6 Sportswear, Inc. v. National Mobilization Against Sweatshops 7 Misc.2d 8 1999) 9 with the permission of the Labor Commissioner") . 2004) (land use permit was required) i Duane Reade, ("permit process" of the New York City Department of 4471 698 N.Y.S.2d 452 1 (apparel manufacturer 824 820 1 "c [ould] 182 1 (N.Y. Sup. Ct. N.Y. Co. only operate its business 10 We 11 anti-SLAPP statute 12 engage her 13 permission or to a person who merely sought government funding for 14 a project that could be financed privately. 15 in are aware of no case applicable proposed to course that a of has held person who conduct the is New York entitled without government In light of the language and intent of the statute 16 the New York courts' interpretations 17 it I we l conclude and Klessig's counterclaim was properly dismissed. 18 of to that CONCLUS ION 19 We have considered all of the parties' arguments in 20 support of their respective appeals and have found in them no 21 basis 22 affirmed. 23 24 for reversal. The judgment of the district court is Plaintiff shall bear the costs of the appeal; defendant shall bear the costs of the cross-appeal. - 34
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