United States Court of Appeals For the First Circuit
No. 23-1532
DANA CHENG; EPOCH GROUP INC., d/b/a Epoch Media Group,
Plaintiffs, Appellees,
v.
DAN NEUMANN; MAINE PEOPLE'S ALLIANCE, d/b/a Beacon,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. Lance E. Walker, U.S. District Judge]
Before
Montecalvo, Lynch, and Rikelman, Circuit Judges.
John-Mark Turner, with whom Christopher Cole, Cassandra O. Rodgers, and Sheehan, Phinney, Bass & Green, P.A. were on brief, for appellants.
Christopher J. Bakes, with whom Kip Joseph Adams, Bryan Paul Sugar, Lann G. McIntyre, and Lewis Brisbois Bisgaard & Smith LLP were on brief, for appellees.
June 25, 2024 RIKELMAN, Circuit Judge. In 2021, a Maine news outlet,
Beacon, ran an article about New York resident and political
commentator Dana Cheng that characterized Cheng as "far-right" and
a "conspiracy theorist." Cheng sued the article's author, Dan
Neumann, and Beacon for defamation in federal court in Maine.
Neumann and Beacon then sought dismissal of the case under both
federal law and a New York anti-SLAPP1 law that applies to meritless
defamation lawsuits. Faced with dueling arguments by the parties
about whether Maine or New York law applied to Cheng's defamation
claim, the district court conducted a choice-of-law analysis,
decided that New York law applied, and granted the motion to
dismiss under New York's anti-SLAPP statute. On Cheng's appeal,
we agreed with the district court's ruling but for a different
reason: We decided that Cheng's lawsuit had to be dismissed under
binding First Amendment principles protecting free speech by the
press.
Back at the district court, Neumann requested attorneys'
fees under the fee-shifting provision of New York's anti-SLAPP
law. Faced with yet another choice-of-law dispute, the district
court denied Neumann's request after determining that Maine, not
New York, law applied to the specific issue of attorneys' fees.
Now Neumann appeals, arguing that the district court erred in its
1SLAPP stands for "strategic lawsuit against public participation."
- 2 - choice-of-law analysis. Although we note the district court's
careful analysis below, we certify to the Supreme Judicial Court
of Maine (the "Law Court") the question of which state's law
applies because there is no clear controlling precedent on point
and the choice-of-law analysis is determinative of the attorneys'
fees issue.
I. BACKGROUND
We draw the relevant facts from our prior decision in
Cheng v. Neumann ("Cheng I"), 51 F.4th 438 (1st Cir. 2022), which
describes the parties' dispute about the Beacon article in more
detail.
Dana Cheng is a New York resident and the vice president
and co-founder of The Epoch Times, a newspaper published by the
New York-based Epoch Group. In June 2021, Cheng spoke at an event
co-sponsored by the Maine Republican Party in Windham, Maine. A
few weeks later, Beacon ran an article about the event titled
"Maine GOP hosts speaker present at Jan. 6 Capitol assault." The
article described Cheng's own statements about her presence during
the attack on the U.S. Capitol on January 6th, 2021, and referred
to Cheng as "far-right," "right-wing," and a "conspiracy
theorist."
Cheng and the Epoch Group (together, "Cheng") sued
Neumann and the Maine People's Alliance (together, "Neumann"),
which publishes Beacon, for defamation in federal district court
- 3 - in Maine under diversity jurisdiction. Neumann moved to dismiss
the complaint under Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim and, separately, under a provision of New
York's anti-SLAPP statute, N.Y. C.P.L.R. § 3211(g).
New York is among the many states that have passed
anti-SLAPP laws, which generally provide extra breathing room for
the press and others speaking out on issues of public concern by
deterring baseless lawsuits. See Libel and Privacy, Rep.'s Comm.
for Freedom of the Press, https://perma.cc/BE5M-2UA5 (explaining
that "[j]ournalists and news organizations often use anti-SLAPP
laws to defend themselves against expensive, baseless lawsuits
brought by the subject of an investigative story"). More
specifically, such laws "provide . . . defendants [such as
reporters and news outlets] with procedural and substantive
defenses meant to prevent meritless suits from imposing
significant litigation costs and chilling protected speech."
Godin v. Schencks, 629 F.3d 79, 81 (1st Cir. 2010). New York's
anti-SLAPP statute consists of three separate, interlocking
provisions:
• N.Y. Civ. Rights Law § 76-a, which broadly defines "an action involving public petition and participation" to cover claims based on news articles about public figures and provides that a plaintiff like Cheng can succeed in such an action only if she establishes by "clear and convincing evidence" that the allegedly defamatory statement "was made with knowledge of its falsity or with reckless disregard of whether it was false";
- 4 - • N.Y. C.P.L.R. § 3211(g), which provides a procedural mechanism for speakers like Neumann to move to dismiss an action involving public participation and instructs that such a motion "shall be granted unless the party [bringing the claim, here Cheng,] demonstrates that the cause of action has a substantial basis in law or is supported by a substantial argument for an extension, modification, or reversal of existing law"; and
• N.Y. Civ. Rights Law § 70-a ("section 70-a"), which provides that a defendant in an action involving public participation, such as a reporter or a news outlet like Neumann, is entitled to attorneys' fees upon a demonstration, including a finding under N.Y. C.P.L.R. § 3211(g), that the action was commenced without any substantial basis in law or argument for extending the law.
Given that Cheng resides in New York and Neumann is based
in Maine, the parties disputed in the district court whether Maine
or New York law applied. After conducting a choice-of-law analysis
and determining that New York law governed Cheng's defamation claim
because she is a New York resident and would have experienced any
harm from the speech in New York, the district court granted
Neumann's motion to dismiss under N.Y. C.P.L.R. § 3211(g). See
Cheng v. Neumann, No. 21-cv-00181, 2022 WL 326785, at *7 (D. Me.
Feb. 3, 2022) (explaining that "the New York anti-SLAPP law applies
here rather than the standard Rule 12(b)(6) framework"); id. at *9
(dismissing the case because "[p]laintiffs have failed to
demonstrate that [d]efendants' [a]rticle is not presumptively
protected from suit under New York Civil Rights Law § 76-a or that
- 5 - their libel claim 'has a substantial basis in law['] . . . under
New York Civil Practice Law and Rule 3211(g)"). Cheng appealed.
On appeal, we affirmed but took a different route.
Instead of evaluating the district court's choice-of-law analysis
and affirming under New York law, we "bypass[ed] the parties'
choice-of-law disputes" and instead "look[ed] to dispositive First
Amendment principles." Cheng I, 51 F.4th at 443. Because the
Beacon article, on its face, contained only statements that were
either factually true or expressions of opinion and therefore
unprovable as false, we held that the complaint did not state a
plausible defamation claim under any state's law given binding
First Amendment precedent. Id. at 445-47.
Back in district court, as the winning party on the
defamation claim, Neumann requested attorneys' fees and costs
under Federal Rule of Civil Procedure 54(d)(2), which allows a
prevailing party to move for attorneys' fees after the entry of
judgment. The rule also requires the party seeking fees, here
Neumann, to "specify . . . the statute, rule, or other grounds
entitling the movant to the award." Fed. R. Civ. P.
54(d)(2)(B)(ii). Neumann identified section 70-a, the
fee-shifting provision of New York's anti-SLAPP law, as the source
of authority for his request.
The district court denied Neumann's attorneys' fees
motion. It concluded that the question of which state's law
- 6 - applied to the attorneys' fees issue was a separate and distinct
question from which state's law applied to Cheng's defamation claim
itself. Relying on choice-of-law principles from the Second
Restatement of Conflict of Laws, the court determined that Maine
law governed Neumann's request for fees because "New York's
interest in a Maine publisher's access to a fee-shifting remedy in
a Maine court is of less significance than Maine's interest in
affording that remedy." This timely appeal followed.
II. DISCUSSION
Neumann argues that the district court erred in its
conflict of laws analysis on the attorneys' fees issue. He
maintains that proper evaluation of the Restatement factors
results in the application of New York law, under which he is
entitled to fees.2 In response, Cheng contends that our decision
in Cheng I eliminated state law from this case altogether by
resolving the merits on First Amendment grounds. In her view,
under the law of the case doctrine, our prior decision means that
only federal law applies in this case, and Neumann has no right to
fees under federal law.
2We note that section 70-a does not condition an award of attorneys' fees solely upon prevailing under the procedural provisions of New York's anti-SLAPP statute, as opposed to under federal law. Instead, it entitles a defendant to attorneys' fees upon "a demonstration, including [a dismissal under New York's anti-SLAPP law], that the action . . . was commenced or continued without a substantial basis in fact and law." N.Y. Civ. Rights Law § 70-a (emphasis added).
- 7 - A. Law of the Case Doctrine
We begin with -- and reject -- Cheng's argument that the
law of the case doctrine eliminates state law from this case
altogether.
Under our precedent, "[t]he law of the case doctrine has
two branches" directly related to appellate decisions. United
States v. Matthews, 643 F.3d 9, 13 (1st Cir. 2011). The first
branch, known as the "mandate rule," prevents a trial court from
reconsidering matters that were "explicitly or implicitly decided
by an earlier appellate decision in the same case." Id. (quoting
United States v. Moran, 393 F.3d 1, 7 (1st Cir. 2004)). The second
branch "binds a 'successor appellate panel in a second appeal in
the same case' to honor fully the original decision." Id. (quoting
Moran, 393 F.3d at 7). "Whether the doctrine applies in a specific
instance is a question of law, engendering de novo review." Id.
Cheng argues that Neumann's request for fees under New
York law violates this doctrine by ignoring the "legal effect" of
our prior panel decision. She contends that our decision in
Cheng I "determined that New York law does not apply." Thus, she
argues, awarding fees under New York law would violate the Cheng
I court's mandate.
We disagree with Cheng and her interpretation of our
prior decision. In Cheng I, we decided the merits of the
defamation claim under overarching First Amendment principles that
- 8 - prevented us from having to consider the state choice-of-law issue.
See 51 F.4th at 443. Importantly, although the First Amendment
"place[s] limits on the application of the state law of
defamation," Milkovich v. Lorain J. Co., 497 U.S. 1, 14 (1990), it
does not provide an independent source of federal defamation law.
By finding that the statements in the Beacon article were not
constitutionally actionable under the First Amendment, then, we
simply held that Cheng had failed to state a claim under any
state's defamation law. Or, to put it another way, we concluded
that the First Amendment provided Neumann with a complete defense
to a defamation claim based on the factual allegations in the
complaint regardless of whether Maine or New York law applied.
Accordingly, we did not need to resolve the parties' choice-of-law
dispute because there was no conflict to resolve between the
substantive defamation law of the two states. And because we did
not decide the conflict of laws question, it was not part of our
mandate on remand. See Cohen v. Brown Univ., 101 F.3d 155, 168
(1st Cir. 1996) ("The reviewing court's mandate 'constitutes the
law of the case on such issues of law as were actually considered
and decided by the appellate court, or as were necessarily inferred
from the disposition on appeal.'" (citation omitted)); 18B Charles
Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 4478
(3d ed. 2023) ("Actual decision of an issue is required to
- 9 - establish the law of the case. Law of the case does not reach a
matter that was not decided.").
Thus, Cheng's objection to the application of New York
law based on the law of the case doctrine fails. Neumann's success
on a federal constitutional defense does not alter the fact that
this is a diversity suit involving only a state law claim for
defamation. And in diversity actions, "in the absence of
countervailing . . . principles," federal courts "apply state law
with regard to the allowance or disallowance of attorneys' fees,
as well as to the determination of the amount of the fee award."
1 Robert L. Rossi, Attorneys' Fees § 10:5 (3d ed. 2023) (footnotes
omitted); see also B. Fernandez & HNOS, Inc. v. Kellogg USA, Inc.,
516 F.3d 18, 28 (1st Cir. 2008) ("Attorneys' fees are recoverable
in diversity cases where a state law provides the right to recover
such fees." (footnotes omitted)).
B. The Conflict of Laws Issue
1. Whether a Conflict Exists
We turn next to Neumann's argument that the district
court incorrectly applied Maine rather than New York law to the
attorneys' fees issue. We review this legal dispute over the
choice-of-law analysis de novo. See Levin v. Dalva Bros., 459
F.3d 68, 73 (1st Cir. 2006). "When analyzing choice-of-law issues,
federal courts sitting in diversity apply the substantive law of
the forum state, here [Maine], including its conflict of laws
- 10 - rules." Smith v. Prudential Ins. Co. of Am., 88 F.4th 40, 49 (1st
2023). As a threshold step, Maine courts consider whether any
conflict exists between two states' laws before conducting a
choice-of-law analysis. See Flaherty v. Allstate Ins. Co., 822
A.2d 1159, 1165 (Me. 2003) (noting that Maine and Connecticut have
distinct wrongful death statutes before analyzing which state's
law should apply).
The parties essentially agree that there is a conflict
between Maine and New York law on the attorneys' fees issue, and
the district court correctly concluded that such a conflict exists.
As the parties point out, Maine has its own anti-SLAPP law, and
the two states' anti-SLAPP statutes are different in important
ways. First, they have distinct provisions about the availability
of attorneys' fees when a complaint is dismissed. Compare N.Y.
Civ. Rights Law § 70-a(1)(a) (providing that "costs and attorney's
fees shall be recovered upon a demonstration" that statutory
requirements are met, such that fees are mandatory (emphasis
added)), with Me. Rev. Stat. tit. 14, § 556 (providing that "[i]f
the court grants a special motion to dismiss, the court may award
the moving party costs and reasonable attorney's fees," such that
fees are discretionary (emphasis added)). Second, the statutes'
scopes are different. Maine's anti-SLAPP law applies only to
statements arising from the "exercise of the . . . right of
petition under the Constitution of the United States or the
- 11 - Constitution of Maine." Me. Rev. Stat. tit. 14, § 556. Although
Maine's statute defines petitioning activity broadly as speech
tending to influence governmental decision-making, it is generally
understood not to apply to mine-run news articles like the one at
issue in this case.3 See Gaudette v. Mainely Media, LLC, 160 A.3d
539, 543 (Me. 2017) ("Maine's anti–SLAPP statute is not applicable
to newspaper articles unless those articles constitute the
newspaper petitioning on its own behalf or the party seeking to
invoke the anti–SLAPP statute is a party that used the newspaper
to broadcast the party's own petitioning activities."). By
contrast, New York's statute protects a much broader swath of
speech, including speech by the press in news articles on issues
of public interest. See N.Y. Civ. Rights Law § 76-a(1)(a)
(defining an "action involving public petition and participation"
as a "claim based upon," inter alia, "any . . . lawful conduct in
3 Under Maine's anti-SLAPP statute, petitioning activity includes "any statement reasonably likely to encourage consideration or review of an issue by a legislative, executive or judicial body, or any other government proceeding," and "any statement reasonably likely to enlist public participation in an effort to effect such consideration." Me. Rev. Stat. tit. 14, § 556; see Thurlow v. Nelson, 263 A.3d 494, 503 (Me. 2021) (holding that letter sent by parents of student to public school officials complaining about assistant principal was petitioning activity, "[p]articularly given the broad reach of section 556"). Still, the parties agree that Maine's anti-SLAPP statute is not at issue. Cheng argues that the statements here did not implicate petitioning activity, and Neumann notes that he never invoked the Maine statute nor moved to dismiss the complaint pursuant to it.
- 12 - furtherance of the exercise of the constitutional right of free
speech in connection with an issue of public interest").
Thus, there is a clear conflict between Maine and New
York law on the attorneys' fees issue. So, we now proceed to the
question of whether the district court correctly applied Maine
choice-of-law rules in concluding that Maine law applies.4
2. Maine or New York Law?
Defamation is a common law tort. And under Maine law,
"questions regarding . . . liability for tortious conduct are
appropriately addressed pursuant to tort choice-of-law
principles," which Maine courts derive from the Second Restatement
of Conflict of Laws. State Farm Mut. Auto. Ins. Co. v. Koshy, 995
A.2d 651, 660 (Me. 2010); see also Flaherty, 822 A.2d at 1165.
The Restatement provides specific guidance regarding
choice-of-law determinations in "[m]ultistate [d]efamation" cases
like this one. Restatement (Second) of Conflict of L. § 150 (Am.
L. Inst. 1971). It instructs that "[t]he rights and liabilities
4 Neumann contends that there is no conflict here because he is entitled to fees under Maine's exception to the "American rule," which provides that parties usually must bear their own costs and fees in litigation unless there is "clear statutory authority" to the contrary. Indorf v. Keep, 288 A.3d 1214, 1219 (Me. 2023) (citation omitted). Section 70-a, Neumann contends, provides that clear statutory authority. But this argument assumes that Neumann is right that New York law applies to the attorneys' fees issue. We see no reason that a New York statute would provide "clear statutory authority" to award fees if Maine law governs the fees issue here. Because Neumann cites no authority to convince us otherwise, we reject this argument.
- 13 - that arise from defamatory matter in any . . . book or newspaper,
or any . . . similar aggregate communication[,] are determined by
the local law of the state" that has the "most significant
relationship to the occurrence and the parties." Id. § 150(1).
And "[w]hen a natural person" like Cheng brings a defamation claim,
"the state of most significant relationship will usually be the
state where the person was domiciled at the time." Id. § 150(2).
Here, there is no dispute that Cheng was "domiciled" in New York
at the time Beacon published the article.5 Thus, under section
150(2), the presumption that New York law applies can be overcome
only if, "with respect to the particular issue, some other state
has a more significant relationship to the occurrence and the
parties." Id. § 150 cmt. b.
As the district court correctly concluded, the
choice-of-law analysis must focus on the specific question here:
Which state's law governs the attorneys' fees dispute? Whether
the Law Court would apply section 150 to the issue of attorneys'
fees in defamation suits is unclear. Although the Restatement
suggests that "at least most issues involving [defamation]" should
be determined by the law of the defamed party's domicile, id. § 150
cmt. e, no Maine court has applied the section 150(2) presumption
5"Domicile has two components: residence and the intent to remain. When these concur there is domicile." Margani v. Sanders, 453 A.2d 501, 503 (Me. 1982).
- 14 - in the context of attorneys' fees. In fact, no Maine court has
yet evaluated whether this presumption applies to the merits of a
defamation claim.
Even if it were obvious that the Law Court would apply
section 150(2), how it would answer the subsequent
question -- whether Maine has a "more significant relationship" to
the attorneys' fees issue, such that the presumption in favor of
New York law could be overcome -- is far from clear. Several
principles guide the "more significant relationship" inquiry. Id.
§ 145(1). The Restatement emphasizes:
(a) the needs of the interstate and international systems, (b) the relevant policies of the forum [here, Maine], (c) the relevant policies of other interested states [here, New York] and the relative interests of those states in the determination of the particular issue, . . . and (g) ease in the determination and application of the law to be applied.
Id. § 6(2); see also id. § 145 cmt. b. Maine courts put it more
succinctly:
In applying the "most significant contacts and relationships" test, it is necessary to isolate the issue, to identify the policies embraced in the laws in conflict, and finally to examine the contacts with the respective jurisdictions to determine which jurisdiction has a superior interest in having its policy or law applied.
Collins v. Trius, Inc., 663 A.2d 570, 573 (Me. 1995); see also
Flaherty, 822 A.2d at 1167.
- 15 - The district court reasoned that Maine's interest in
having its fee-shifting law apply was superior to New York's
interest because Neumann resides in Maine and defended against the
suit in Maine. On appeal, Neumann contends that the district
court's analysis failed to sufficiently account for or balance the
"policies embraced in the laws in conflict" -- here, the two
states' anti-SLAPP laws. Collins, 663 A.2d at 573. In Neumann's
view, applying New York law would better accommodate both states'
interests by giving effect to New York's broader regime without
hindering Maine's interests.
Neumann is correct that New York's anti-SLAPP law
reflects a broad interest in giving speech, including speech by
the press, as much breathing room as possible and deterring suits
like this one. New York's statute was enacted with the goal of
providing "the utmost protection for the free exercise or speech,
petition, and association rights." Aristocrat Plastic Surgery,
P.C. v. Silva, 169 N.Y.S.3d 272, 275 (N.Y. App. Div. 2022)
(citation omitted). In 2020, the New York legislature passed
amendments intended to "broadly widen[] the ambit of the law" by,
for example, expanding the definition of what constitutes an
"action involving public petition and participation" and making an
award of attorneys' fees under section 70-a mandatory, rather than
permissive. Id. at 274-75. Thus, New York has expressed a strong
policy interest in deterring SLAPP suits from being filed in the
- 16 - first place by requiring plaintiffs to pay the costs associated
with bringing a frivolous defamation claim designed to chill
protected speech. See Ent. Partners Grp., Inc. v. Davis, 603
N.Y.S.2d 439, 440 (N.Y. App. Div. 1993).
Maine has taken a different approach than New York in
balancing the competing interests at stake, including how much
breathing room to give the press in reporting on issues of public
concern, by adopting a narrower anti-SLAPP statute. Its law covers
only suits that target "petitioning activity" and provides that a
court "may," but not must, award attorneys' fees upon a successful
motion to dismiss such a suit. Me. Rev. Stat. tit. 14, § 556.
Neumann argues that Maine's decision to adopt a narrower statute
than New York's does not reflect an interest in depriving Maine
residents of the remedies provided by other states' anti-SLAPP
laws, and thus that Maine's policy interests would not be hindered
by application of New York law here.
We are not so sure. Each state's anti-SLAPP law reflects
sensitive legislative judgments about how best to balance
speakers' rights to speak out on issues of public concern with
injured parties' rights to seek redress for alleged harms from
such speech. New York law has given more leeway to more categories
of speech than Maine has. Indeed, Maine deliberately chose to
enact a law that allows a party to sue the press and speakers
without fear of being held liable for attorneys' fees if its suit
- 17 - is dismissed, as long as the suit does not involve "petitioning
activity." And even if the suit is about petitioning activity and
fails on the merits, Maine law makes clear to speakers that they
are not automatically entitled to attorneys' fees for successfully
defending against such a lawsuit. This is an important component
of Maine's regime for plaintiffs evaluating whether to bring
potentially valid defamation claims. It also impacts the actions
of speakers in Maine: Those who are engaged in non-petitioning
activity are on notice that they have less room for error in their
speech, lest they be forced to bear the costs of defending
themselves in court. Awarding fees under New York law could, at
least potentially, upset this careful balance the Maine
legislature has struck.
On the other hand, allowing a SLAPP plaintiff from New
York to avoid fee liability simply because they sue an out-of-state
resident in that resident's home court disserves New York's
interest in deterring its residents from launching these types of
suits at all. In an age when many communications take place over
the internet, declining to apply New York law may severely impair
New York's ability to regulate this aspect of its residents'
conduct.
3. Certification
"When faced with potentially outcome-determinative
questions of Maine law for which 'there is no clear controlling
- 18 - precedent in the decisions of the Supreme Judicial Court,' a
federal court may certify those questions to the Law Court 'for
instructions' on how to rule." Mundell v. Acadia Hosp. Corp., 92
F.4th 1, 6 (1st Cir. 2024) (quoting Me. R. App. P. 25). Of course,
we do not certify every time a difficult question of state law
arises. See Plourde v. Sorin Grp. USA, Inc., 23 F.4th 29, 36 (1st
Cir. 2022) (explaining that we employ certification judiciously so
as "not to bother our busy state colleagues with every difficult
state-law issue that comes our way"). So long as the "answer to
[a] question is 'sufficiently clear to allow us to predict [the
Law Court's] course,'" we will answer it ourselves. R.I. Truck
Ctr., LLC v. Daimler Trucks N. Am., LLC, 92 F.4th 330, 348 (1st
Cir. 2024) (quoting Hosp. San Antonio, Inc. v. Oquendo-Lorenzo, 47
F.4th 1, 6 (1st Cir. 2022)). But when "the answer[] to the[]
question[] may hinge on policy judgments best left to the [state]
court," In re Engage, Inc., 544 F.3d 50, 53 (1st Cir. 2008), and
"the outcome [the court would reach is] far from certain,"
Easthampton Sav. Bank v. City of Springfield, 736 F.3d 46, 51 (1st
Cir. 2013), certification is prudent. Our Maine colleagues, in
turn, will exercise their discretion to answer certified questions
"when three criteria are met: (1) there is no dispute as to the
material facts at issue; (2) there is no clear controlling
precedent; and (3) [their] answer, in at least one alternative,
- 19 - would be determinative of the case." Franchini v. Inv.'s Bus.
Daily, Inc., 268 A.3d 863, 865-66 (Me. 2022) (citation omitted).
Both our criteria for certifying a question and, in our
view, Maine's criteria for answering it are met in this case.
First, and most importantly, there is no controlling precedent on
point. The Law Court has not established a legal standard for
evaluating choice-of-law issues in a defamation action; as such,
we cannot say definitively if it would adopt the section 150(2)
presumption. Even if it were to apply this presumption to "most"
issues in a defamation action, we do not know if attorneys' fees
liability is among those issues. And even if the presumption
applied here, the outcome the Law Court would reach in determining
whether Maine has a superior interest in consistently regulating
the speech of its residents than New York has in deterring its
residents from filing meritless lawsuits is "far from certain."
Easthampton Sav. Bank, 736 F.3d at 51.
Second, assuming the presumption applies, the superior
interest inquiry may turn upon a policy judgment that would have
"implications beyond these parties": whether the goals of Maine's
or New York's anti-SLAPP regime would be more harmed by the
imposition of fees against a New York resident who brings a
meritless defamation claim against a Maine resident. See In re
Engage, Inc., 544 F.3d at 53. And, although "we often resolve
questions of state law that affect many, certification is more
- 20 - appropriate" when, like here, the "policy arguments" do not "line
up solely behind one solution." Patel v. 7-Eleven, Inc., 8 F.4th
26, 29 (1st Cir. 2021) (quoting In re Engage, Inc., 544 F.3d at
57). Finally, we note that the outcome here may well impact how
often out-of-state plaintiffs choose to file defamation claims in
Maine's courts. As for the Law Court's additional criteria, no
disputes of material fact exist, and its decision would be
determinative of this case. If the Law Court were to find that
New York law applies, then Neumann would be entitled to seek fees.
And if Maine law applies, then Neumann's quest for fees ends.
Accordingly, rather than hazard a guess on the choice-of-law issue,
we certify the question to the Law Court.6
III. CONCLUSION
For all these reasons, we certify the following question
to the Supreme Judicial Court of Maine:
Under Maine's conflict of laws rules, does Maine's or New York's anti-SLAPP law govern a New York plaintiff's fee liability after its defamation claim against a Maine resident for speech in Maine has been dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim under overarching First Amendment principles?
The clerk of this court is directed to forward to the
Law Court, under the official seal of this court, a copy of the
Although neither party requested certification, we may 6
certify questions sua sponte. See Easthampton Sav. Bank, 736 F.3d at 50 n.4.
- 21 - certified question and our decision in this case, along with copies
of the briefs filed by the parties in this appeal, which provide
all facts relevant to the issue certified. We retain jurisdiction
pending the Law Court's determination.
- 22 -