09-4120-ov L}, Chand ok v. Klessig 09-4121-cv xap 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4…

09-4120-ov(L},
Chand ok v.
Klessig
09-4121-cv(xap)
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3
4
5
6
(Argued:
August Term, 2009
April 12, 2010 Decided: January13 y
Docket Nos. 09-4120-cv(L), 09-4121-cv(xap)
2011)
7
8
9
10
MEENA CHANDOK, ph.D.,
Plaintiff-Appellant
Cross-Appellee,
11 - v. -
12 DANIEL F. KLESSIG, Ph.D.,
13
14
15
pefendant-Appellee
Cross-Appellant.
16 Before: JACOBS, Chief Judge, KEARSE and CALABRESI, Circuit Judges.
17 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 suggesting that plaintiff was guilty of scientific
21 misconduct and dismissed defendant I s counterclaim asserting that
22 plaintiff I s bringing of this suit. violated New York's statute
23 governing Strategic Lawsuits Against. Public Participation, N.Y.
24 Civil Rights Law §§ 70-a et seg. See 648 F.Supp.2d 449 (2009).
25 Affirmed.

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ROBERT C. WEISSFLACH, Buffalo, New York
(Harter Secrest & Emery, Buffalo, New
York, on the brief), for Plaintiff-
Appellant-Cross-Appellee.
S. PAUL BATTAGLIA, Syracuse, New York
(Bond, Schoeneck & King, Syracuse, New
York, on the brief), for Defendant-
Appellee-Cross-Appellant.
9 KEARSE, Circuit Judge:
10 Plaintiff Meena Chandok, Ph.D., appeals from so much of a
11 judgment of the United States District Court for the Northern
12 District of New York, Joseph M. Hood, Judge *, as dismissed her
13 amended complaint ("Amended Complaint" or "complaint") against
14 defendant Daniel F. Klessig, Ph.D., seeking damages for allegedly
15 defamatory statements by Klessig impugning the accuracy and/or
16 veracity of Chandok I s reports of the results of her biochemical
17 research. In Chandok v. Klessig, 648 F.Supp.2d 449 (2009)
18 ("Chandok"), the district court granted Klessig's motion for
19 summary judgment dismissing the complaint on the ground that
20 Chandok was a limited-issue public figure and that she failed to
21 adduce clear and convincing evidence from which a jury could
22 reasonably conclude that Klessig had acted with "malice," defined
23 as knowledge of falsity or reckless disregard for the truth.
24 Klessig cross-appeals from so much of the judgment as dismissed
25 his counterclaim alleging that Chandok I s bringing of this suit
26 * Honorable Joseph M. Hood, Senior Judge, of the United States
27 District Court for the Eastern District of Kentucky, sitting by
28 designation.
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1
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violated New York 's
Public Participation
76-a (McKinney 2009) .
statute against Strategic Lawsuits Against
("SLAPP") , N. Y. Civ. Rights Law §§ 70 a,
The district court granted Chandok's motion
4 for summary judgment dismissing the counterclaim on the ground
5 that the anti-SLAPP statute did not apply to the facts of this
6 case.
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 and convincing evidence of malice.
10 Klessig, in support of his cross-appeal, contends that the
11 district court erred in interpreting the anti SLAPP statute. We
12 affirm the dismissal of the counterclaim substantially for the
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 are different from those adopted by the district
16 court. We conclude that under New York law, which governs the
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.
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1 I. 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 Material Facts on Klessig's motion for summary judgment
6 dismissing her complaint. As to Klessig' s motion, we view the
7 record in the light most favorable to Chandok and draw all
8 reasonable inferences in her favor.
9 A. The "NOS" Project and the Allegedly Defamatory Statements
10 Klessig was a senior scientist at, and until May 2003 the
11 president of, the Boyce Thompson Institute for Plant Research
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 focusing on immune response mechanisms in plants and, in
15 particular, on plants' production of nitric oxide (or "NO") to
16 offset attacks by pathogens. NO plays a key role in fighting
17 plant disease.
18 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. She worked on a project whose goal was to find and
21 purify a nitric oxide synthase ("NOS"), i.e., an enzyme that
22 catalyzes the production of nitric oxide. Chandok contends that
23 from late August 2004 on, Klessig made statements that falsely
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1 impugned the accuracy or veraci ty of her research on the NOS
2 project.
3 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 activity, dubbed "variant pli or "varP, II by
7 biochemical means i that she had introduced the cloned NOS gene
8 into E. coli and baculovirusi and that she had performed in vitro
9 experiments that confirmed her findings. She reported that the
10 recombinant protein (~, the protein resulting from her genetic
11 engineering and recombination) had NOS activity, a result that
12 would have constituted "a significant breakthrough in the field of
13 plant research II (Amended Complaint ~ 12).
14 Chandok I s reported results were widely publ icized wi thin
15 the plant-biology community. They were described in an article
16 coauthored by Chandok, Klessig, and Drs. A. Jimmy ytterberg and
17 Klaas J. van Wij k of the Cornell Department of Plant Biology,
18 published in May 2003 in the academic journal Cell. A follow-up
19 article based on the same research, coauthored by Chandok,
20 Klessig, BTl scientist Dr. Sophia K. Ekengren, and Dr. Gregory B.
21 Martin of BTl and the Cornell Department of Plant Pathology,
22 appeared in the Proceedings of the National Academy of Sciences
23 ("PNAS") in May 2004.
24 Prior to Chandok's report of her discoveries, Klessig had
25 twice applied to the National Institutes of Health ("NIH") for
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1 grants to fund NOS research. Neither application was granted.
2 After Chandok's October 20 report of her findings to Klessig, a
3 revised application, cowritten by Klessig and Chandok, was
4 submi t ted to NIH on October 25. The materials presented in the
5 new application consisted almost entirely of Chand ok 's reported
6 data. In mid-2003, Klessig's laboratory received a grant of more
7 than $1 million from NIH to fund further NOS research.
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 ~ 14) - submitted her resignation from BTl and
12 shortly moved to Maryland. Thereafter, none of the other
13 scientists in Klessig' s laboratory were able to replicate the
14 results that Chandok had reported and that were described in the
15 Cell and PNAS articles. In the following months, Klessig called
16 Chandok several times to ask her to return to Ithaca to help
17 replicate her NOS experiments. 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. In June 2004, BTl's human resources director Lucy Pola
21 sent an e-mail to Chandok that stated, in part, as follows:
22 I know that Dan has been trying to reach you about
23 replicating some of the work you have done (I
24 apologize for not being able to tell you exactly what
25 part). I do know that he is asking if you could come
26 help the 3 postdocs in the lab with the procedure as
27 they are unable to replicate. He understands how
28 tricky this procedure was and feels that with your
29 assistance they would be able to do it. He has
30 indicated that he would pay your travel, lodging etc.
31 if you would be willing to come out and help.
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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.
7 Chandok responded that she "agree [d) that it is important to
8 reproduce results," but stated that
9 [U] nfortunately, my current commitments are keeping
10 me extremely busy. However, if the situation changes
11 at a future point in time, I shall contact you.
12 After 10 days with no further word from Chandok, Klessig
13 sent her a letter dated June 18, 2004, bye-mail, fax, and
14 registered mail. The letter stated that, although Klessig
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 [i.e., "inducible" NOS) activity," it was, as he had
18 told her repeatedly, "critical that other scientists within, as
19 well as outside [] of [, ] our group be able to reproduce your
20 results on the plant iNOS" independently, but that none of BTl's
21 scientists had been able to do so.
22 Klessig's June 18 letter asked Chandok to return to
23 Ithaca, at BTl's expense, to assist in the reproduction of her
24 results by mid-July, "estimat [ing that) it should take no longer
25 than a week or two to do these experiments and resolve the
26 matter. " Klessig stated that "in return for [Chandok's]
27 cooperation in assisting in verification of [her] reported
28 results," he would provide her with strong recommendations for
29 future job applications. He added, inter alia, that
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[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:
• I will retract both the Cell and PNAS papers.
• I will have to contact the INS and retract my
April 11, 2002 letter of support for your permanent
residency application.
• 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.
Chandok's response came in the form of a June 30, 2004
15 letter from her attorney, addressed to the chairman of BTl's board
16 of directors. The letter stated that Chandok would "not, under
17 any circumstances, again work with or for Dr. Klessig" and
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 the disclosures threatened in his letter, Chandok
22 would consider those statements defamatory and would sue.
23 Chandok did not return to Ithaca. 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. On July 26, Klessig received an e-mail from one of his
27 researchers who, after describing various problems encountered in
28 attempts to use Chandok's methods and verify her results,
29 concluded as follows: "All of our findings are contradictory to
30 what Meena recorded in the lab notebook, the patent document, and
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1 her Cell and PNAS papers. I do not think that her experiment data
2 are reliable."
3 2. Allegedly Defamatory Statements by Klessig
4 In early August, Klessig discussed Chandok's possible
5 scientific misconduct with BTI's president, David Stern, who began
6 an inquiry. On August 20, Klessig, Stern, Pola, and Martin, one
7 of the coauthors of the PNAS article, met to discuss the Chandok
8 matter. Stern decided to appoint an investigative committee, in
9 accordance with BTI's policy on scientific misconduct, and to
10 consider whether and when to retract the Cell and PNAS papers. It
11 was decided that Klessig would notify NIH and the National Science
12 Foundation ("NSF") of the investigation and that Stern would
13 notify the Department of Health and Human Services I Office of
14 Research Integrity (IIORI"). Because some of Chandok I s research
15 had been funded by a federal grant, and her findings were the
16 basis of a subsequent federal grant application, Stern sent ORI a
17 letter dated August 30, 2004, that began as follows:
18 As required by 42 C.F.R. §50.103(d), I report
19 the result of an inquiry into possible scientific
20 misconduct on the part of a postdoctoral fellow
21 formerly employed by BTl. The research in question
22 was funded in part by the N.I.H .... and some of
23 the data in question were furnished as part of a
24 grant proposal which resulted in the above-mentioned
25 award. My determination is that there is sufficient
26 evidence to proceed with an investigation .
27 The letter proceeded to summarize that evidence, which included
28 Stern1s interviews with BTI scientists who had tried and failed to
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1 replicate Chandok's results and the fact that "Chandok ... did
2 not readily provide them with key experimental materials. I!
3 Klessig sent letters dated August 30, 2004 to NIH and NSF
4 officials stating that for several months his postdoctoral
5 researchers had been attempting to reproduce the NOS results
6 reported by Chandok and had been unsuccessful. Each letter stated
7 that the recent evidence II strongly suggests that she falsif ied II
8 some of her data.
9 From late August through mid-September, Klessig prepared
10 and sent to Stern, Pola, and/or Chandok I s coauthors of the Cell
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 that inability suggested that the data on "recombinant
16 variant P" may have been II fabricated by the lead author. I! The
17 retraction that was eventually I! [s] ent to PNAS [on] 9/14/04" by
18 Klessig, Martin, and Ekengren read, in part, as follows:
19 Since publication of th[e Cell] paper, other members
20 of the Klessig laboratory have been unable to repeat
21 the results with recombinant variant P. In addition,
22 other discrepancies have come to light that suggest
23 data on the recombinant variant P presented in the
24 Cell paper may have been fabricated by M.R. Chandok--
25 hence the Cell paper is being retracted.
26 For this reason and the fact that we
27 are no longer confident in much of the data in this
28 paper, we hereby retract Chand ok et al., 2004. M.R.
29 Chandok does not concur with this retraction ....
30 The experiments that produced these data were
31 performed by M.R. Chandok and are now suspect.
32 We deeply regret this incident and sincerely
33 apologize to our colleagues.
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1 A September 17, 2004 e-mail from one PNAS editor to another,
2 stating that Klessig had contacted PNAS about the retractions of
3 the Cell and PNAS articles, said that "[i] t appears the first
4 author, a former post doc in [Klessig's] lab, fabricated the data
5 and spiked the samples to indicate iNOS activity.!! As this e-mail
6 appears to reflect a communication by Klessig, Chandok imputes the
7 charge of "fabricat[ion] II to Klessig (the IIImputed Statement").
8 On October 6, 2004, at a conference in Madrid, Spain, on
9 plant disease, attended by many of the leaders in the study of
10 plant pathology, Klessig announced the impending publication of
11 the retractions. His notes in preparation for the conference
12 indicate that he discussed Chandok's work, in part, as follows:
13 Since publication of this work in in 2003
14 several new postdocs have joined our group to study
15 varP or the pathogen- inducible NOS. To date they
16 have not been able to repeat the results with the
17 recombinant variant P that were reported. In
18 addition, other discrepancies have very recently come
19 to light that strongly suggest that the data on the
20 recombinant variant P is [sic] unreliable.
21 Shortly after the Madrid conference, Klessig sent e-mails to
22 fellow scientists who were interested in NOS research and had made
23 contributions to Klessig' s research, informing them that at the
24 conference he had announced the retractions of the and PNAS
25 articles in light of his researchers' inability to replicate or
26 confirm Chandok's reported NOS results.
27 A November 5, 2004 article in Science magazine reported
28 that the Cell and PNAS articles had been retracted. It quoted
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
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1 community not base their research on this [sic] unreliable data
2 that we are no longer confident in."
3 The BTl Scientific Misconduct Investigation Committee (or
4 "Committee"), appointed by Stern in September 2004, proceeded to
5 consider, inter alia, (a) the futile past efforts of Klessig I s
6 researchers to replicate Chandok IS results, (b) a March 11, 2005
7 report of a successful effort by Abgent, a laboratory that
8 Chandok hired to perform experiments using reagents that she
9 furnished, and (c) unsuccessful new efforts by Klessig's
10 laboratory to replicate the results reported by Abgent. 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. Chandok had supplied the reagents used to
14 perform NOS activity assays," and it found the evidence as a whole
15 inconclusive: "Based on the available evidence, the investigating
16 committee found no conclusive evidence of data alteration or
17 fabrication, but also no conclusive evidence that Dr. Chandok
18 achieved the results reported." The Committee was critical of
19 Chandok's procedures, finding "several egregious breaches of
20 commonly accepted scientific practice by Dr. Chandok," including
21 her "failures to maintain records and to archive research
22 resul ts. " It stated that "[t] he inability to recover the most
23 important constructs reported in a high profile publication and
24 the inability to reproduce published results, combined with the
25 absence of corroborating detailed research records was judged to
26 be grounds for good faith suspicion of scientific misconduct."
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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, in a single cause of action, that Klessig made numerous
5 false statements as to the accuracy or veracity of her NOS
6 research, thereby causing significant damage to her reputation in
7 the scientific community. The complaint alleged that those
8 statements were made "out of ill will and spite towards Dr.
9 Chandok" (Amended Complaint ~ 35) and "with actual and common law
10 malice" (id. ~ 36) i that they were made "[i]n retaliation for
11 [Chandok' s] not assisting [Klessig] in continuing his research"
12 (id. ~ 33) i and that "[a] t the time of making these allegations,
13 [Klessig] knew that these statements were untrue and/or recklessly
14 disregarded whether such statements were true" (id. ~ 35) .
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, 2004, through January 25, 2005, that she claimed
18 were false and defamatory (the "Statements"). These included the
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. See Chandok, 648
22 F.Supp.2d at 452-55 & nn.3-17 (summarizing each of the 23
23 Statements) .
24 Klessig, in answer to Chandok' s complaint, denied, inter
25 alia, that he had uttered any false statements or any statements
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lout of spite, ill will, or malice, or with reckless disregard for
2 the truth. (See Amended Answer " 33-36). He also
3 denie[d] that he uttered any statements that injured
4 plaintiff's reputation except (a) such statements as
5 may have described truthfully and accurately (i) her
6 research, (ii) his and BTl's inability to replicate
7 her test results and to verify the existence of the
8 critical varP expression vectors that plaintiff
9 claimed she had used and (iii) other aspects of her
10 conduct and performance, and (b) such other
11 statements as were and are true and/or privileged
12 and/or otherwise non-actionable.
13 (ld., 27.)
14 In addition, Klessig asserted a counterclaim seeking
15 damages, including costs and attorneys' fees, from Chandok for
16 bringing the present action. The counterclaim alleged that within
17 the meaning of the anti-SLAPP statute, N.Y. Civ. Rights Law § 70-a
18 et seq., Chandok's participation in obtaining federal funds for
19 the NOS project made her a "public applicant" (see id. " 60-62);
20 that Klessig had a continuing obligation to ensure that those
21 funds were expended in compliance with federal law and to report
22 suspected misconduct to BTl and ORI (see id. , 64); that
23 Chandok's defamation claim against Klessig was materially related
24 to Klessig' s reports and comments on Chandok' s use of federal
25 funds in the NOS project (see id. , 63) i that her claim was
26 without a substantial basis (see id. , 66), given that she "had
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 the claimed NOS activityn {id. , 67} i and that her
30 defamation claim therefore "constitute[d] a SLAPP suit in
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1 violation of New York Civil Rights Law §§ 70-a et. seq." (id.
2 , 65).
3 Following a period of discovery, Klessig moved for summary
4 judgment dismissing Chandok's defamation claim, arguing, inter
5 alia, that several of the Statements of which Chandok complained
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. He also argued that the Statements were part of a public
10 controversy and that Chandok could not prevail because she could
11 not establish that Klessig made any of the Statements with
12 knowledge of falsity or with reckless disregard for the truth;
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 York law; and that any other Statements he made were
17 absolutely or qualifiedly privileged.
18 Chandok moved for summary judgment dismissing Klessig' s
19 counterclaim. Noting that federal funding was not a prerequisite
20 to NOS research, she contended principally that she was not a
21 "public applicant" within the meaning of the anti-SLAPP statute.
22 In Chandok, 648 F.Supp.2d 449, the district court granted
23 both sides' motions for summary judgment. With respect to
24 Chandok's complaint, the court stated that
25 [t]o establish a claim of defamation under New York
26 law, a Plaintiff must establish 1) that the statement
27 averred was defamatory; 2) that the statement was
28 published by the defendant; 3) that the statement was
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1
2 communicated to a party who was not the plaintiff i
and 4) the resultant injury to the plaintiff.
3 rd. at 456. The court noted, however, that a person's individual
4 interest in protecting her reputation must be weighed against
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. See id. at 458. Thus, it noted that a public
8 figure cannot prevail on a defamation claim unless, in addition to
9 the above elements, she establishes "with convincing clarity" that
10 the statements were false and that the defendant published the
11 statements with "actual" malice, i.e. / "knowledge of falsity or
12 reckless disregard for the truth," id. at 459.
13 The district court ruled that "Chandok is a limited issue
14 public figure" in the area of plant biology. rd. It noted that
15 there is an international community of plant biologists, see id.
16 at 458 59, and that Chandok admitted that she was "well known
17 within the plant biology community," . at 459. The court stated
18 that "[slcientific articles are inherently subject to robust
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 court reasoned that Chandok, as the lead author of the
22 articles publishing her reports of her findings, had "willfully
23 interjected herself into a public controversy by way of creating
24 the very subject of the controversy/" id. at 459, and that
25 Klessig' s constitutional privilege to speak on the matter thus
26 could not be overcome unless Chandok proved with convincing
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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, II . at 457, it concluded after reviewing the
6 record that lI[i]t is not a reasonable inference ll that the reported
7 II inabili ty of numerous scientists to duplicate [Chandok IS]
8 result II either IIwas substantially false or that Dr. Klessig knew
9 that it was false, or certainly that the references to such data
10 were made with reckless disregard for the truth,lI id. at 459-60;
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 Plaintiff's results are false. Plaintiff does not
14 appear to take issue with the factual portions of the Statements,
15 only with the veracity of Defendant's conclusions as to the
16 implications of those facts--that if numerous other scientists
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 Turning to Klessig's counterclaim, the district court
23 identified three elements of a claim under the anti-SLAPP statute:
24 1) there must be a public application or petition, 2)
25 the public applicant or permittee of that application
26 must file a lawsuit against a person who is
27 "materially related to any efforts of the defendant
28 to report on, comment on, rule on, challenge or
29 oppose such application or permission, II and 3) that
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1
2
3
the lawsuit must be, at a minimum, substantially
without merit.
Id. at 460 (quoting N.Y. Civ. Rights Law §§ 70, 76). The court
4 concluded that Klessig's counterclaim should be dismissed because
5 the first element was not satisfied:
6 The defining aspect of a public application or
7 petition, is that it is a required government process
8 that must be satisfied to perform some other task.
9 See Harfenes v. Sea Gate Assoc., Inc., 167 Misc. 2d
10 647, 647 N.Y.S.2d 329, 331 (Sup.Ct.N.Y.County,
11 1995) . Receipt of a grant may certainly assist in
12 conducting research, but research can proceed without
13 this specific grant. . .. [R] equests for money,
14 without other restrictions, are not public
15 applications. Id. As there is no public
16 application, there can neither be a public applicant
17 nor a commentator to the same. Accordingly, there is
18 no cause of action under the SLAPP statute.
19 Chandok, 648 F.Supp.2d at 460-61.
20 This appeal and cross-appeal followed.
21 II. DISCUSSION
22 Summary judgment is appropriate if "there is no genuine
23 issue as to any material fact" and "the movant is entitled to
24 judgment as a matter of law." Fed. R. Civ. P. 56(c) (2). Where
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 motion for summary judgment. See, ~, Celotex Corp. v.
29 Catrett, 477 U.S. 317, 322-23 (1986) i Burke v. Jacoby, 981 F.2d
30 1372, 1379 (2d Cir. 1992), cert. denied, 508 U.S. 909 (1993).
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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. See,~, Law Debenture Trust Co. of
4 New York v. Maverick Tube Corp., 595 F.3d 458, 468 (2d Cir. 2010) i
5 Konikoff v. Prudential Insurance Co. of America, 234 F.3d 92, 97
6 (2d Cir. 2000) (IlKonikoff"). When both sides have moved for
7 summary judgment, each party1s motion is examined on its own
8 merits, and all reasonable inferences are drawn against the party
9 whose motion is under consideration. See, ~, Law Debenture
10 Trust Co. of New York v. Maverick Tube Corp., 595 F. 3d at 468 i
11 Schwabenbauer v. Board of Education, 667 F.2d 305, 314 (2d Cir.
12 1981) .
13 A. 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, the burden of proving "actual" malice and
19 of doing so by clear and convincing evidence. She also contends
20 that even if those premises were correct, she presented sufficient
21 evidence to create genuine issues to be tried as to Klessig 1s
22 knowledge of the truth and/or reckless disregard for the falsity
23 of his Statements. For the reasons that follow, we need not reach
24 the questions of whether Chandok was a limited-issue public figure
25 or whether Klessig 1s statements concerned a matter of public
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1 interest, for we may affirm on any ground for which there is
2 support in the record, see, ~, Konikoff, 234 F.3d at 98, and we
3 do so here on a simpler ground. Summary judgment dismissing
4 Chandok's defamation claim was appropriate because whether or not
5 Klessig' s Statements constituted speech on an issue of public
6 concern, and whether or not Chandok was a public figure with
7 respect to that issue, the Statements were wi thin the scope of
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 privileges cannot be overcome without a showing--by a
12 preponderance of the evidence--of ther "actual" malice or
13 common-law malice, i. e., spite or ill will i and Chandok did not
14 adduce evidence sufficient to defeat those privileges even under a
15 preponderance standard.
16 Historically, a defendant was held strictly liable for
17 defamation. See generally Gertz v. Robert Welch, Inc., 418 U.S.
18 323, 346 (1974) i Chapadeau v. Utica Observer-Dispatch, Inc., 38
19 N.Y.2d 196, 199, 379 N.Y.S.2d 61, 64 (1975). Under state laws,
20 malice was presumed, "implied by the law from an intentional
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." W. Prosser, The Law of Torts § 113, at 772 (4th ed.
24 1971) .
25 Beginning with New York Times Co. v. Sullivan, 376 U.S.
26 254 (1964), the Supreme Court ruled that the First Amendment of
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1 the United States Constitution limits the reach of state
2 defamation laws insofar as they are applied to speech on matters
3 of public concern. In New York Times, the Court held that II [t]he
4 constitutional guarantees" require that a public official not be
5 allowed to recover damages for a false defamatory statement
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
10 false or not. II • at 279-80. See also St. Amant v. Thompson,
11 390 U.S. 727, 731 (1968) (constitutional privilege not overcome
12 unless statement was published while lithe defendant in fact
13 entertained serious doubts as to the truth of [the] publication") i
14
15
16
Garrison v. Louisiana, 379 U.S. 64, 74 (1964)
published with II [a] high degree of
publication's] probable falsityll).
(not overcome unless
awareness of [the
17 In Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967),
18 the Court applied this principle to plaintiffs who were "involved
19 in issues in which the public has a justified and important
20 interest" id. at 134, and who, though not public officials, were
21 "public figures," persons who "commanded a substantial
22 amount of independent public interest at the time of the
23 publications" because of the positions they held and/or because of
24 their IIpurposeful activity amounting to a thrusting of [their]
25 personal it [ies] into the 'vortex' of important public
26 controversy, II • at 154-55. See, §...:..fL., Gertz, 418 U.S. at 342,
21 -

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1 344-45 (persons "who, by reason of the notoriety of their
2 achievements or the vigor and success with which they seek the
3 public I s attention, are properly classed as public figures" and
4 are subj ect to the New York Times Co. standard requiring clear
5 and convincing proof of knowledge of falsity or reckless disregard
6 for the truth) .
7 In Gertz, the Court held that the states "may not, II
8 consistent with the First Amendment, "permit recovery of presumed
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, id. at 347; see Dun &
12 Bradstreet, Inc. v. Greenmoss Builders, Inc" 472 U.S. 749, 751
13 (1985) (plurality opinion) ("Dun & Bradstreet II) ("Gertz
14 held that the First Amendment restricted the damages that a
15 private individual could obtain from a publisher for a libel that
16 involved a matter of public concern. II) •
17 In Dun & Bradstreet, the Court noted that speech on
18 matters that are of purely private concern is of less First
19 Amendment importance. It ruled that state laws may, without
20 violating the First Amendment, permit recovery for IIpresumed and
21 punitive damages II in a defamation action without "a showing of
22 'actual malice' when the defamatory statements do not
23 involve matters of public concern. II Id. at 763 (plurality
24 opinion) .
25 For purposes of this opinion, we assume, without deciding,
26 that Klessig' s Statements did not deal with a matter of public
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1 concern, that Chandok was not a limited-issue public figure, and
2 that, therefore, the onerous burden of proving "actual, II i. e. ,
3 constitutional, malice by clear and convincing evidence was not
4 applicable. We nonetheless conclude that summary judgment was
5 properly granted dismissing her claims because the evidence she
6 adduced was insufficient to meet the less demanding standards
7 imposed in these circumstances by New York law.
8 New York law allows a plaintiff to recover for defamation
9 by proving that the defendant published to a third party a
10 defamatory statement of fact that was false, was made with the
11 applicable level of fault, and either was defamatory per se or
12 caused the plaintiff special harm, so long as the statement was
13 not protected by privilege. See,~, Albert v. Loksen, 239 F.3d
14 256, 265-66 (2d Cir. 2001), and authorities cited therein. But
15 New York "[p] ublic policy mandates that certain communications,
16 although defamatory, cannot serve as the basis for the imposition
17 of liability in a defamation action. 1I Toker v. Pollak, 44 N.Y.2d
18 211, 218, 405 N.Y.S.2d 1, 4 (1978). New York law accords
19 qualified privileges to at least two categories of statements that
20 are pertinent to the present case.
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 legal or moral. 11 Rosenberg v. MetLife, Inc. I
24 8 N.Y.3d 359, 365, 834 N.Y.S.2d 494, 497 (2007) (IIRosenberg")
25 (internal quotation marks omitted)i see, ~, Stukuls v. State,
2 6 42 N. Y . 2 d 2 72 , 2 7 9 I 3 97 N . Y . S . 2 d 74 0 I 744 ( 197 7 ) ( " S t ukul s II )
23 -

-- 23 of 34 --

1 (this privilege applies "though the duty be not a legal one, but
2 only a moral or social duty of imperfect obligation" (internal
3 quotation marks omitted)). For example, a letter from a
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 of physician's assistants, II was "subj ect at a minimum to
8 [this] qualified privilege." Buckley v. Litman, 57 N.Y.2d 516,
9 520, 457 N.Y.S.2d 221, 222 (1982) ("Buckley").
10 In addition, a "qualified[] privilege extends to a
11 communication made by one person to another upon a subject in
12 which both have an interest." Liberman v. Gelstein, 80 N. Y. 2d
13 429, 437, 590 N.Y.S.2d 857, 862 (1992) ("Liberman") (internal
14 quotation marks omitted) i see, ~, Buckley, 57 N.Y.2d at 520 21,
15 457 N.Y.S.2d at 222-23. This privilege encompasses a defamatory
16 communication on "any subject matter in which the party
17 communicating has an interest made to a person having a
18 corresponding interest." Stukuls, 42 N.Y.2d at 278-79, 397
19 N.Y.S.2d at 744 (emphases and internal quotation marks omitted).
20 In some instances the common-interest privilege may overlap the
21 moral-duty privilege, for one may have a "moral duty to
22 communicate .. knowledge and information about a person in whom
23 the[ speaker] ha[s] an interest to another who also has an
24 interest in such person," id. at 279, 397 N.Y.S.2d at 744
25 (internal quotation marks omitted). Thus, in Buckley, Dr. Litman,
26 the physician who believed his assistant had stolen patient files,
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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 latter was away and with whom the assistant was seeking
4 employment. See 57 N.Y.2d at 520-21, 457 N.Y.S.2d at 222-23.
5 A qualified privilege may be overcome by a showing either
6 of "actual" malice (i.e., knowledge of the statement's falsity or
7 reckless disregard as to whether it was false) or of common-law
8 malice. See, SL..9..:.., Liberman, 80 N. Y. 2d at 438, 590 N. Y . S. 2d at
9 863; Rosenberg, 8 N.Y.3d at 365, 834 N.Y.S.2d at 497. Common-law
10 malice "mean [s] spite or ill will." Liberman, 80 N. Y. 2d at 437,
11
12
13
590 N.Y.S.2d at 862. liThe critical difference between common-law
malice and constitutional [i. e., II actual II ] mal ice
the former focuses on the defendant's attitude
is that
toward the
14 plaintiff, the latter on the defendant's attitude toward the
15 truth." Konikoff, 234 F.3d at 99.
16 As for what is needed to prove "actual" malice, "there is
17 a critical difference between not knowing whether something is
18 true and being highly aware that it is probably false. Only the
19 latter establishes reckless disregard in a defamation action."
20 Liberman, 80 N.Y.2d at 438, 590 N.Y.S.2d at 863; see also
21 418 U. S. at 334 n.6 (equating reckless disregard with "' serious
22 doubts as to the truth' II and II subj ecti ve awareness of probable
23 falsityll (quoting St. Amant, 390 U.S. at 731)).
24 Further, while either "actual ll malice or common-law malice
25 IIwill suffice to defeat a conditional privilege, II Liberman, 80
26 N.Y.2d at 438, 590 N.Y.S.2d at 863, common-law malice will defeat
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1 such a privilege only if it was II' the one and only cause for the
2 publication, 'II id. at 439, 590 N.Y.S.2d at 863 (quoting Stukuls,
3 42 N.Y.2d at 282, 397 N.Y.S.2d at 746); see, ~, Albert v.
4 Loksen, 239 F.3d at 272 (same) i Konikoff, 234 F.3d at 98 (same).
5 Thus, as to common-law malice, "only if a jury could reasonably
6 conclude that ll spite or ill will lI'was the one and only cause for
7 the publication'lI is "a triable issue. raised. II Liberman, 80
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).
10 IIUnlike situations in which the 'actual malice' standard
11 is constitutionally imposed and must therefore be proved by 'clear
12 and convincing' evidence, ... to defeat qualified privilege in
13 New York, the plaintiff need only establish 'actual malice' by a
14 preponderance of the evidence." Albert v. Loksen, 239 F.3d at
15 273. Preponderance is the normal quantum of proof applicable in
16 civil cases, and none of the New York cases discussed above
17 suggests that more than a preponderance is required to establish
18 common-law malice.
19 Within this framework, we conclude that all of Klessig's
20 Statements were protected by one or more state-law privileges.
21 Several were subject to qualified privileges for statements that
22 Klessig had a legal and/or moral obligation to make. As to legal
23 obligations, the fact that some of the NOS research was funded by
24 federal moneys meant that Klessig was required to inform the
25 pertinent agencies of suspicions of scientific misconduct.
26 Federal regulations defined II [m] isconduct" or II [m] isconduct in
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1 [s] cience" to include "fabrication, II "falsification," and lIother
2 practices that seriously deviate from those that are commonly
3 accepted within the scientific community for. conducting or
4 reporting research, II 42 C.F.R. § 50.102 (2003), and they required
5 that any entity applying for a research grant establish procedures
6 "for investigating and reporting instances of alleged or apparent
7 misconduct involving research or research activities that
8 are supported with funds made available under the [Public Health
9 Service] Act,1I id. § 50.101 (emphases added). Thus, when Klessig
10 wrote to officials of NIH and NSF stating that lI[elvidence [had]
11 recently emerged that strongly suggests that [Chandok] falsified"
12 some, most, or all of her reported data on recombinant varP, he
13 was fulfilling a legal obligation. Similarly, when Klessig
14 formally filed his allegations against Chandok with the Scientific
15 Misconduct Investigation Committee, he was complying with the
16 reporting requirement, for the regulations required an immediate
17 inquiry and/or investigation into allegations of possible
18 misconduct, see id. §§ 50.101, 50.103(d). Accordingly, in making
19 his Statements to the Committee, NIH, and NSF, Klessig was acting
20 in accordance with a legal duty.
21 Moreover, in light of the facts that Klessig had twice
22 applied to NIH fori and twice failed to be awarded, federal funds
23
24
for his NOS research,
funds (in excess of
and that NIH granted Klessig's laboratory
$1 million) for NOS research only after
25 receiving his third application, which was cowritten by Chandok
26 and consisted almost exclusively of Chandok I s reported datal we
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1 conclude that even had there been no federal reporting
2 regulations, Klessig would have had a moral obligation to inform
3 NIH of the possible fabrication of the data on which, clearly, it
4 had relied.
5 Further I Klessig plainly had a moral obligation to share
6 his concerns about Chandok's reported results with BTl's president
7 Stern, with BTl's responsible personnel officer Pola, with the
8 Cell and PNAS articles' coauthors Ekengren, who was a BTl
9 scientist, and Martin, ytterberg, and van Wijk, who were members
10 of the faculty at Cornell. The reputations and credibility of
11 both institutions and all of these individual scientists were
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 reporting. The moral-obligation
15 qualified privilege applies to at least the nine Statements sent
16 to one or more of these BTl and Cornell recipients. Indeed,
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.
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 privilege for statements that Klessig had a moral
23 obligation to make. Having caused PNAS to publish the article,
24 and having developed serious doubts about the accuracy or
25 veracity of its contents, Klessig and his coauthors who shared
26 those doubts rightly felt that they owed it to PNAS--and to any
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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 statements on a
6 matter of common interest among communicants. His Statements to
7 Stern, Pola, Ekengren, Martin, Ytterberg, and van Wijk, discussed
8 above, in addition to being within the moral-obligation
9 privilege, were within the common-interest privilege. The
10 remaining eight Statements of which Chandok complains were e-mails
11 sent by Klessig to fellow scientists, at Cornell or other
12 institutions, who shared his interest in NOS research, and some of
13 whom had made contributions to Klessig' s research. In these
14 e-mails, Klessig stated that his researchers had been unable to
15 reproduce Chandok 1 s reported results, and he warned his fellow
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, were "unreliable" or "falsified" or "may have
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 11 [n]ever had the recombinant version." As communications
22 to colleagues with whom he had a common interest in NOS research,
23 these e-mailed statements too were qualifiedly privileged.
24 Thus, 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.
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1 As to 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 that he acted in reckless disregard for the truth. For
5 months, Klessig had at least three scientists attempting to
6 replicate Chandok's reported results; it is undisputed that they
7 failed. Although Chandok argues that the experiments were
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. The Scientific Misconduct Investigation Committee
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; it is undisputed that she refused. In
17 light of (a) Chandok's acknowledgement that it was important to be
18 able to replicate reported scientific results, (b) the lack of any
19 dispute as to the fact that other scientists were unable
20 independently to replicate or confirm Chandok's reported results,
21 (c) the undisputed fact that Klessig repeatedly attempted to
22 discuss the research with Chandok and repeatedly implored her to
23 assist his researchers, (d) the undisputed fact that Chandok
24 refused to assist in their efforts, and (e) the absence of
25 corroborating details in Chandok I s records of her research, no
26 rational juror could find that Klessig's Statements with regard to
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1 the retraction of the and PNAS articles on the ground that
2 Chandok's reported results were "suspect," "unreliable," and "may
3 have been fabricated, II were made either with knowledge that the
4 Statements were false or with reckless disregard for their truth.
5 Nor does the record permit an inference of common-law
6 malice. In light of the efforts made by Klessig to have the
7 resul ts reported by Chandok replicated, including his repeated
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 as collaborators in the publication of Chandok's
13 unverifiable reported results, no rational juror could conclude
14 that Klessig I s Statements were made solely out of spite and ill
15 will.
16 We conclude that Chandok failed to adduce evidence of
17 either lIactual" or common-law malice sufficient to create a
18 genuine issue for trial. Summary judgment dismissing her
19 complaint was properly granted.
20 B. 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 for federal funding for NOS research made her a "public
24 applicant II within the meaning of the anti-SLAPP statute. That
25 statute provides, in part, that
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1 [a] defendant in an action involving public petition
2 and participation, as defined in paragraph (a) of
3 subdivision one of section seventy-six-a of this
4 article, may maintain a[] . counterclaim to
5 recover damages, including costs and attorney's fees,
6 from any person who commenced or continued such
7 action,
8 N.Y. Civ. Rights Law § 70-a(I), if that action was
9 commenced or continued without a substantial basis in
10 fact and law and could not be supported by a
11 substantial argument for the extension, modification
12 or reversal of existing law,
13 id. § 70-a (1) (a) . Section 76 -a defines "[a] n ' action involving
14 public petition and participation,'" in pertinent part, as "an
15 action for damages that is brought by a public applicant or
16 permittee." Id. § 76-a (1) (a) The statute defines "public
17 applicant or permittee" as
18 any person who has applied for or obtained a permit,
19 zoning change, lease, license, certificate or other
20 entitlement for use or permission to act from any
21 government body, or any person with an interest,
22 connection or affiliation with such person that is
23 materially related to such application or permission.
24 Id. § 76 -a (1) (b) (emphases added) .
25 The district court ruled that Klessig's counterclaim
26 should be dismissed on the ground that Chandok was not a public
27 applicant or permittee because government permission or support
28 was not a prerequisite to her NOS research. We agree.
29 The New York Court of Appeals has noted that the enactment
30 of the anti-SLAPP statute in 1992 was prompted by
31 a rising concern about the use of civil litigation,
32 primarily defamation suits, to intimidate or silence
33 those who speak out at public meetings against
34 proposed land use development and other activities
35 requiring approval of public boards. Termed SLAPP
36 suits--strategic lawsuits against public
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1
2
3
4
5
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 . .
6 600 West 115th Street Corp. v. Von Gutfeld, 80 N.Y.2d 130, 137
7 n.1, 589 N.Y.S.2d 825, 828 n.1 (1992). Accordingly, noting that
8 the anti-SLAPP statute was
9 specifically designed to protect those citizens who,
10 usually before a government agency, publicly
11 challenge applications by developers or other
12 businesses for environmental and land use permits,
13 leases, licenses or other approvals,
14 Harfenes v. Sea Gate Association, Inc., 167 Misc.2d 647, 650, 647
15 N.Y.S.2d 329, 331 (Sup. Ct. N.Y. Co. 1995) (emphasis added), the
16 Harfenes court held that a homeowners' association that had sought
17 a loan from the Small Business Administration had not thereby
18 become a public applicant within the meaning of the statute. The
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, '" 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 anti-SLAPP statute were persons whose proposed actions
25 required government permission. See,~, Novosiadlyi v. James,
26 70 A.D.3d 793, 79394, 894 N.Y.S.2d 521, 522 (2d Dep't 2010)
27 (building use permit was required) i Singh v. Sukhram, 56 A.D.3d
28 187, 194, 866 N.Y.S.2d 267, 274 (2d Dep't 2008) (permission to
29 operate an airline was required) i Related Properties, Inc. v.
30 Town Board, 22 A.D.3d 587, 588-89, 591, 802 N.Y.S.2d 221, 222-23,
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1 225 (2d Dep't 2005) (land use permit was required) i Duane Reade,
2 Inc. v. Clark, 2004 WL 690191, at *7 (N.Y. Sup. Ct. N.Y. Co. Mar.
3 31, 2004) ("permit process" of the New York City Department of
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 1 182
7 Misc.2d 4471 452 1 698 N.Y.S.2d 820 1 824 (N.Y. Sup. Ct. N.Y. Co.
8 1999) (apparel manufacturer "c [ould] only operate its business
9 with the permission of the Labor Commissioner") .
10 We are aware of no case that has held the New York
11 anti-SLAPP statute applicable to a person who is entitled to
12 engage in her proposed course of conduct without government
13 permission or to a person who merely sought government funding for
14 a project that could be financed privately.
15 In light of the language and intent of the statute l and
16 the New York courts' interpretations of it I we conclude that
17 Klessig's counterclaim was properly dismissed.
18 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 for reversal. The judgment of the district court is
22 affirmed.
23 Plaintiff shall bear the costs of the appeal; defendant
24 shall bear the costs of the cross-appeal.
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