Thomas Franchini v. INVESTOR'S BUSINESS DAILY, INC., d/b/a Investor's Business Daily

United States Court of Appeals
For the First Circuit
No. 19-1389
THOMAS FRANCHINI,
Plaintiff, Appellee,
v.
INVESTOR'S BUSINESS DAILY, INC., d/b/a Investor's Business
Daily,
Defendant, Appellant,
and
BANGOR PUBLISHING COMPANY, INC., d/b/a Bangor Daily News; MEG
HASKELL; EDWARD MURPHY; GANNETT COMPANY, INC., d/b/a USA Today;
DONOVAN SLACK; SALLY PIPES; MTM ACQUISITION, INC., d/b/a
Portland Press Herald,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before *
Lynch, Circuit Judge,
and Saris ** , District Judge.
* Judge Torruella heard oral argument in this matter and
participated in the semble, but he did not participate in the
issuance of the panel's decision. The remaining two panelists
therefore issued the opinion pursuant to 28 U.S.C. § 46(d).
** Of the District of Massachusetts, sitting by
designation.

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Russell B. Pierce, Jr., with whom Norman, Hanson & DeTroy,
LLC were on brief, for appellant.
Raymond W. Belair, with whom Belair & Associates, P.C. were
on brief, for appellee.
November 13, 2020

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LYNCH, Circuit Judge. Investor's Business Daily (IBD)
appeals from the denial of its special motion to dismiss under
Maine's anti-SLAPP law Thomas Franchini's defamation suit against
it for publishing an Op-Ed by Sally Pipes. Because Franchini
failed timely to serve process on Sally Pipes, originally named as
a defendant, the only defendant from which he seeks relief for
this Op-Ed is IBD. The district court relied on its reading of
language from Gaudette v. Mainely Media to deny the motion. 160
A.3d 539 (Me. 2017). We exercise our interlocutory jurisdiction
and certify the underlying questions of law to the Maine Law Court.
Me. R. App. P. 25(a).
I. Background
A. Facts.
IBD is a subscription news service with a national
circulation. By uncontested affidavit, IBD’s chief content
officer, Chris Gessel, states that, beginning in 1990, IBD’s
founder gave "[IBD] the explicit charge . . . of not merely
criticizing policies and programs, but also, where possible,
putting forward reasonable solutions or policy responses." As
part of that effort, "starting in the mid-to-late 1990s, [IBD]
began writing . . . extensively about political, regulatory,
economic and health care issues, with particular emphasis on
favorably affecting public policy in Washington, D.C." IBD focused
much of its commentary on "the debate raging in Washington and the

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states over how best to reform our health care system." IBD
invited columnists and policy makers to participate in the "IBD
Brain Trust," which provided regular commentary on policy issues.
IBD notes that its editorials and Op-Eds have attracted the
attention of government bodies, with "literally dozens" of
references to their pieces in the Congressional Record relating to
the debate over the Affordable Care Act. Sally Pipes is a regular
contributor to IBD’s health care commentary. As part of IBD’s
continued commentary on health care policy, IBD published the
December 22, 2017 Sally Pipes Op-Ed.
Sally Pipes submitted to the district court an
uncontested declaration detailing at length her biography and
stating that she intended her Op-Ed as a "call to action" to enlist
public support for the policy reforms she advocates. She states:
[] PRI’s 1 nonprofit activities are intended to
advance PRI’s mission of educating the public
and advocating for public policy solutions to
current issues -- including, but not limited
to, publications, events, media commentary,
and community outreach. We consider these
activities to be within PRI’s exercise of its
First Amendment rights to advance public
policy perspectives and solutions of PRI’s
staff, scholars, and experts.
1 According to Sally Pipes’ declaration, “PRI is a San
Francisco-based think tank founded in 1979. It is a 501(c)(3)
nonprofit corporation whose mission is to advance free market-
policy solutions to current governmental public policy issues. In
particular, [Pipes’] own expertise is in the field of health care
policy. [She] is the Thomas W. Smith Fellow in Health Care Policy
at PRI.”

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[] Within my expertise of health care policy,
I have appeared as a policy expert in many
public forums to address national and
international audiences on health care. My
appearances have included documentaries,
prominent programs and broadcasts of major
national networks. I am a regular contributor
as an op-ed columnist on health care policy,
and a regular columnist or frequent
contributor of opinion editorials to a number
of publishers, including, but not limited to,
a regular column on health care policy to
Forbes.com. I am the author of a number of
books on health care policy in the United
States, including my first book published in
2004, with are foreword by Milton Friedman,
Miracle Cure: How to Solve America’s Health
Care Crisis and Why Canada Isn’t the Answer,
and my latest book, The False Promise of
Single Payer Health Care, published by
Encounter Books in March 2018. The intention
behind all of my writings and public
appearances my intentions [sic] is to inform
individuals with scholarship, research, and
expertise on current public policy issues
under consideration by the government; and to
influence public participation in the health
care policy debates of our times and advance
public policy solutions to those health care
policy issues. I endeavor to reach the widest
national and international public audiences
with my writings and my appearances in
prominent programming.
[] I am not an employee of IBD. I submit op-
ed columns to IBD in my role as president and
CEO of PRI, as described above, or in
furtherance of my professional capacity as a
health care scholar and expert. My intentions
are to inform the debate on health care
policy, to encourage informed public
participation in government policies on health
care, and to influence governmental public
policy on health care. At the end of my op-
ed . . . there is a call to action (“The VA is
in shambles. Absent reform that allows vets
to seek care in the private sector, our

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veterans will continue to be subjected to
subpar care.”), and more information is
provided about me and my position at PRI,
encouraging readers to follow these issues and
to learn more about these health care policy
issues at the Department of Veterans Affairs,
and referencing available information from PRI
and my other publications. This call to
action is reflective of my intent to enlist
public participation in the health care policy
issues under consideration by national and
local governmental bodies.
[] I submitted the op-ed in issue . . . with
these intentions. In criticizing the
Department of Veterans Affairs’ treatment of
our nation’s veterans, and the widespread
growing concern that the U.S. Department of
Veterans Affairs’ recent record of substandard
care and unsatisfactory institutional
response to those incidents of substandard
care, in my opinion the Department is an
example of the risks and ill-fated results of
governmental controlled health care systems.
[sic] Specifically, I was drawing upon
information disclosed in two reasonably
reliable sources: the GAO report referenced in
the article, indicating that several VA
medical facilities have ignored an
unsatisfactory number of patient complaints;
and the USA Today report, which included the
reference to the public claims 2 against Thomas
Franchini and the government’s inadequate or
questionable response to them.
2 In its briefing IBD has provided the publicly available
docket numbers for these claims. They are: Case Numbers 1:14-cv-
00399-JDL; 1:14-cv-00503-JDL; 1:14-cv-00551-JDL; 1:15-cv-220-
JDL; 1:15-cv-00525-JDL, all currently pending in the District of
Maine.

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The Pipes Op-Ed, titled "VA Negligence is Killing Our
Veterans," published on December 22, 2017, and said to be
defamatory, states:
A bombshell report just revealed that a
Department of Veterans Affairs hospital
knowingly hired a physician with a record of
more than a dozen cases of malpractice,
including the death of a patient. Other
recent VA physician recruits include a known
sexual predator and a dangerous felon.
A separate analysis from the Government
Accountability Office determined that several
VA medical facilities had ignored roughly half
of all patient complaints.
These are merely the latest additions to a
laundry list of shameful incidents at VA
medical centers. The agency seems incapable
of delivering high-quality care to the
patients it serves -- or even holding its
employees accountable. Our nation’s heroes
are suffering the consequences.
VA medical facilities are infamous for
administering low-quality care. The latest
GAO report, which examined five VA medical
centers from 2013 to 2017, proves as much.
Administrators of the medical centers were
supposed to monitor and review the performance
of 112 doctors "after concerns were raised (by
patients) about their clinical care." . . . .
When administrators do find hard evidence of
malpractice, they often sweep it under the
rug. An October USA Today expose [sic] of VA
facilities revealed at least 126 cases in
which employees committed fireable offenses.
Instead of immediately terminating these
doctors and nurses, the VA asked them to
resign -- and gave them secret settlements on
their way out the door. In about 75% of the
settlements, administrators omitted the

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incidents from employees' records and even
recommended them to other employers.
Consider the case of Thomas Franchini, a
podiatrist at a Maine VA hospital. Franchini
botched 88 procedures. He severed a patient's
tendon during one surgery and failed to
successfully fuse one woman's ankle in
another. The latter's leg had to be amputated
as a result.
Franchini wasn't fired for any of these
errors. Instead, the VA allowed him to resign
and return to private practice . . . .
The VA is in shambles. Absent reform that
allows vets to seek care in the private
sector, our veterans will continue to be
subjected to subpar care.
Pipes listed other examples of allegedly subpar care at the VA,
identifying at least one other doctor by name. Midway through the
Op-Ed, there is an imbedded IBD banner ad, which advertises: "No
Hidden Agenda: Get News From a Pro-Free Market, Pro-Growth
Perspective." The Op-Ed describes Pipes as follows: "Pipes is
President, CEO, and Thomas W. Smith Fellow in Health Care Policy
at the Pacific Research Institute. Her latest book is The Way out
of Obamacare (Encounter 2016). Follow her on twitter @sallypipes."
At the bottom of the page, the Op-Ed invites readers to "[c]lick
here for more Commentary and Opinion from Investor’s Business
Daily."
B. Procedural History.
Franchini brought a suit in federal court in the District
of Maine against IBD and Pipes, claiming the Pipes Op-Ed defamed

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him. He also sued other news outlets and reporters for different
publications about him. IBD and the other defendants, save Pipes,
moved to dismiss for failure to state a claim, on the basis that
Franchini failed to adequately plead "actual malice" as required
to show defamation. 3 IBD also filed a special motion to dismiss,
arguing that if Maine law applied, Maine’s anti-SLAPP law barred
this suit. It also argued that California law applied, but the
district court did not decide that question. The district court
denied IBD’s special motion under its reading of the Maine Law
Court’s holding in Gaudette, 160 A.3d 539. 4
The district court did not discredit Sally Pipes’
uncontradicted declaration that she published her piece to enlist
public participation in order to influence national health care
3 Sally Pipes did not join in these motions because she
was not served until June 14, 2019 -- after the district court
ruled on the other defendants' joint motion to dismiss and after
IBD brought this appeal. Pipes eventually separately moved to
dismiss on the grounds she had been improperly served, the Maine
district court lacked personal jurisdiction, and California and
Maine's anti-SLAPP statutes barred the suit. The district court
granted Sally Pipes’ motion to dismiss for improper service and
lack of personal jurisdiction. It denied without prejudice Pipes’
motion under California and Maine’s anti-SLAPP laws, reasoning
that IBD’s appeal from the court’s denial of its special motion to
dismiss "divest[ed] the court of jurisdiction regarding the
application of any anti-SLAPP statute to the publication of the
IBD article."
4 As to the 12(b)(6) motion, the district court agreed
Franchini failed to plead actual malice, but deferred decision
until the close of discovery on whether Franchini needed to plead
malice to proceed with his claims.

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policy. Nor did it make any adverse finding of fact relating to
IBD’s uncontested declaration that the Sally Pipes Op-Ed was part
of an editorial effort to "favorably affect[] public policy."
IBD timely appealed the district court’s denial of its
special motion to dismiss. It raised only the question of whether
the district court erred in denying relief under the Maine anti-
SLAPP statute. We asked the parties to also brief whether or not
we have jurisdiction to hear this appeal.
II. This court has appellate jurisdiction.
This is an interlocutory appeal from the district
court's denial of IBD’s special motion to dismiss. This court may
"hear appeals from judgments that are not complete and final if
they 'fall in that small class which finally determine claims of
right separable from, and collateral to, rights asserted in the
action, too important to be denied review and too independent of
the cause itself to require that appellate consideration be
deferred until the whole case is adjudicated.'" Godin v. Schencks,
629 F.3d 79, 83-84 (1st Cir. 2010) (quoting Nieves-Marquez v.
Puerto Rico, 353 F.3d 108, 123 n.13 (1st Cir. 2003)). "[T]he
interlocutory order must present: (1) a conclusive decision, (2)
distinct from the merits of the action, (3) on an important issue,
(4) which would effectively be unreviewable on appeal from a final
judgment." Id. at 84 (citing Awuah v. Coverall N. Am. Inc., 585
F.3d 479, 480 (1st Cir. 2009); Will v. Hallock, 546 U.S. 345, 349

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(2006)). In Godin we concluded we had interlocutory jurisdiction
over an appeal from the district court’s finding that Maine’s anti-
SLAPP law did not apply in diversity actions in federal court.
Id. We did not reach whether a substantive decision under Maine’s
anti-SLAPP law would be immediately appealable. In this case, we
have interlocutory jurisdiction.
Each of the four Godin factors favor jurisdiction. The
decision is conclusive. In Godin we held that an order denying
relief under Maine’s anti-SLAPP law was immediately appealable
because "the order [was] conclusive as to 'the disputed question.'"
Id. (quoting Will, 546 U.S. at 349). The same is true here. 5 IBD
has been conclusively denied the protection of Maine’s anti-SLAPP
law.
The decision is distinct from the merits of the action.
The legal issues raised in this appeal are distinct from the issues
the court would address in a final decision. The statutory
questions raised in this appeal will not be considered in any final
5 The fact that the district court did not reach whether
or not California’s anti-SLAPP law applies does not change our
analysis. Franchini did not raise this argument in his opening
brief, so it is waived. Pignons S.A. de Mecanique v. Polaroid
Corp., 701 F.2d 1, 3 (1st Cir. 1983). Even if it is not waived,
it is meritless. That IBD could receive relief under a different
statute does not undermine our determination that the district
court’s order is conclusive as to whether relief is available under
the Maine law. See Godin, 629 F.3d at 84.

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decision, just as this appeal does not consider essential elements
of defamation.
The decision concerns an important issue of law. In
Godin we looked to whether "the issue raised is 'weightier than
the societal interests advanced by the ordinary operation of final
judgment principles.'" Id. at 84 (quoting Lee-Barnes v. Puerto
Ven Quarry Corp., 513 F.3d 20, 26 (1st Cir. 2008)); see also Mohawk
Indus., Inc. v. Carpenter, 558 U.S. 100, 117 (2009) ("[A]n interest
qualifies as important . . . if it is weightier than the societal
interests advanced by the ordinary operation of final judgment
principles.") (internal quotation marks and citations omitted).
It is well established there is a strong public interest in the
protection of the right to petition. See Borough of Duryea v.
Guarnieri, 564 U.S. 379, 397 (2011). Maine’s courts further
understand the anti-SLAPP law to create a substantive right against
"meritless lawsuits brought with the intention of chilling or
deterring the free exercise of the defendant’s First Amendment
right to petition the government." Schelling v. Lindell, 942 A.2d
1226, 1229 (Me. 2008). This appeal implicates important societal
interests in both First Amendment protections for media outlets,
and the substantive statutory rights created under Maine law.
The decision is also effectively unreviewable on appeal
from a final order. The stated purpose of Maine’s anti-SLAPP
statute is to shield defendants from the burden of meritless

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litigation. It gives defendants who fall under the statute the
right to avoid litigation directed against their legitimate
exercise of the right to petition. Id. at 1230. IBD is denied
meaningful relief if it must go through the time and expense of
fully litigating this matter before it can address the anti-SLAPP
issue. Indeed, the Maine Law Court has reached the same conclusion
in permitting state interlocutory appeals from denials of Maine’s
anti-SLAPP law. Id. at 1229–30 ("We allow interlocutory appeals
from denials of special motions to dismiss brought pursuant to the
anti-SLAPP statute because a failure to grant review of these
decisions at this stage would impose additional litigation costs
on defendants, the very harm the statute seeks to avoid, and would
result in a loss of defendants' substantial rights.").
We conclude we have jurisdiction to hear this appeal. 6
6 The more persuasive authority from other circuits also
permits interlocutory appeals in these circumstances. At least
seven decisions from four circuits have allowed appeals from
denials of anti-SLAPP motions. Schwern v. Plunkett, 845 F.3d 1241,
1244 (9th Cir. 2017) (permitting an interlocutory appeal from a
denial of a motion to dismiss under the Oregon anti-SLAPP law);
NCDR, L.L.C. v. Mauze & Bagby, P.L.L.C., 745 F.3d 742, 750–52 (5th
Cir. 2014) (allowing an interlocutory appeal from denial of relief
under the Texas anti-SLAPP law); Liberty v. Microflo, 718 F.3d
138, 148 (2d Cir. 2013) (allowing an interlocutory appeal from
denial of relief under California’s anti-SLAPP law); DC Comics v.
Pacific Pictures Corp., 706 F.3d 1009, 1014-15 (9th Cir. 2013)
(same); Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164,
179-81 (5th Cir. 2009) (allowing an interlocutory appeal from
denial of relief under the Louisiana anti-SLAPP law); Batzel v.
Smith, 333 F.3d 1018, 1025 (9th Cir. 2003) (superseded in other
parts by statute) (allowing an interlocutory appeal under an
earlier version of the California anti-SLAPP law); see also Los

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III. Certification to the Maine Law Court.
The purpose of the Maine anti-SLAPP statute, as stated
in the text of the statute, is to protect "the moving party’s
exercise of [their] right of petition under the Constitution of
the United States or the Constitution of Maine." Me. Rev. Stat.
tit. 14, § 556. The Maine Law Court has determined the right to
petition under the statute is at least coextensive with the
constitutional right to petition. Pollack v. Fournier, 237 A.3d
149, 153 (Me. 2020) (anti-SLAPP statute applies if the defendant
can establish "'the suit was based on some activity that would
qualify as an exercise of the defendant’s First Amendment right to
petition.'" (quoting Hearts with Haiti, Inc. v. Kendrick, 202 A.3d
1189, 1193-94 (Me. 2019)).
As a matter of federal constitutional law,
"[t]he right to petition allows citizens to express their ideas,
hopes, and concerns to their government and their elected
representatives," and is "generally concerned with expression
directed to the government seeking redress of a grievance."
Lobos Renewable Power, LLC v. Americulture, Inc., 885 F.3d 659,
663-68 (10th Cir. 2018), cert. denied sub nom. AmeriCulture, Inc.
v. Los Lobos Renewable Power, LLC, 139 S. Ct. 591 (2018)
(permitting an interlocutory appeal from district court’s finding
that New Mexico’s anti-SLAPP statute did not apply in federal
court); but see Ernst v. Carrigan, 814 F.3d 116, 118-119 (2d Cir.
2016) (denial of relief under Vermont's anti-SLAPP was not
immediately appealable because issues on appeal were inseparable
from the merits).

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Borough of Duryea, 564 U.S. at 388. "[T]he First Amendment
protects the right of corporations to petition legislative and
administrative bodies." First Nat. Bank of Bos. v. Bellotti, 435
U.S. 765, 791 n.31 (1978); see also Citizens United v. Fed.
Election Comm'n, 558 U.S. 310, 355 (2010) (quoting same). The key
inquiry for purposes of the right to petition is whether the
petitioning activity "relates to a matter of public concern."
Borough of Duryea, 564 U.S. at 398. Case law concerning other
First Amendment protections is informative as to the scope of the
right to petition. Id. at 388 (the "the right to speak" and the
"right to petition" are "cognate rights"). Under the "cognate"
free speech right, the Supreme Court has recognized that "editorial
opinion on matters of public importance . . . is entitled to the
most exacting degree of First Amendment protection." F.C.C. v.
League of Women Voters of California, 468 U.S. 364, 375-76 (1984).
The Maine statute provides for a special motion to
dismiss "[w]hen a moving party asserts that the civil claims . .
. against the moving party are based on the moving party's exercise
of the moving party's right to petition under the Constitution of
the United States or the Constitution of Maine. Me. Rev. Stat.
tit. 14, § 556. It defines "a party's exercise of its rights to
petition" as:
any written or oral statement made before or
submitted to a legislative, executive, or
judicial body, or any other governmental

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proceeding; any written or oral statement made
in connection with an issue under
consideration or review by a legislative,
executive or judicial body, or any other
governmental proceeding; any statement
reasonably likely to encourage consideration
or review of an issue by a legislative,
executive or judicial body, or any other
governmental proceeding; any statement
reasonably likely to enlist public
participation in an effort to effect such
consideration; or any other statement falling
within constitutional protection of the right
to petition government.
Me. Rev. Stat. tit. 14, § 556. The Maine Law Court has stated
that this language is to be read broadly. Desjardins v. Reynolds,
162 A.3d 228, 236 (Me. 2017) ("The Legislature has chosen to
protect petitioning activity by broadly defining a 'party's
exercise of its right of petition.'") (quoting Me. Rev. Stat. tit.
14, § 556). The statute protects, "any statement reasonably likely
to enlist public participation in an effort to effect []
consideration" of an issue of public concern. Me. Rev. Stat. tit.
14, § 556 (emphasis added).
The district court relied on the language in Gaudette
that "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 activity." 160 A.3d at 543. The
district court did not comment on footnote three in Gaudette, which

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states, "[b]ecause the news reports at issue in this appeal do not
constitute petitioning activity, we need not speculate on when
news reporting or editorializing might constitute petitioning
activity." Id. at 543 n.3.
IBD argues that Gaudette is distinguishable on the
undisputed facts of this case. In Gaudette, neither the reporter
nor the newspaper intended to express a viewpoint or enlist public
participation through the pieces at issue. Id. at 542-43.
Instead, the newspaper merely "document[ed] others’ exercise of
their right to petition." Id. at 543. The articles in question
reported on grand jury proceedings without calls for reform or
action by the public or a governmental body. Id. Both the
newspaper and the reporter were engaged in ordinary newsgathering
as part of their business. 7 Id. at 540-41.
In contrast, Sally Pipes' declaration that she works "to
advance free market-policy solutions to current governmental
public policy issues" is uncontested. Indeed, she ended her Op-
Ed with a call for reforms to permit veterans to seek private
sector health care. Nor was the defendant in Gaudette similar to
IBD, a "pro-free market" and "pro-growth" media outlet engaged in
7 Indeed, the court compared Gaudette to the Massachusetts
Supreme Judicial Court’s decision in Fustolo v. Hollander, 920
N.E.2d 837, 842 (Ma. 2010), which interpreted Massachusetts’s
analogous anti-SLAPP law. Gaudette, 160 A.3d at 543. In Fustolo,
the reporter responsible for the article "affirmatively denie[d]
representing a particular viewpoint." Fustolo, 920 N.E.2d at 843.

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a decades-long effort to influence health care policy at the
national level, which stated it published Pipes' Op-Ed to provide
a forum for her views. The nature of the pieces may also be
dissimilar. The Op-Ed piece calls for specific reforms at the VA,
revealing the viewpoint of both the author and the publisher.
Apart from these distinctions, IBD argues that Sally
Pipes plainly engaged in petitioning activity, and IBD should be
able to invoke the anti-SLAPP statute to protect its decision to
publish her protected activity.
IBD also argues the Maine Law Court has protected
analogous statements published in newspapers, as acknowledged in
Gaudette. 160 A.3d at 542. In Schelling, the Maine Law Court
applied the anti-SLAPP provisions to a letter to the editor,
expressing support for a recently enacted bill, and criticizing by
name a legislator who voted against it. 942 A.2d at 1230-31. In
Maietta Construction, Inc. v. Wainwright, the Maine Law Court
applied the anti-SLAPP law to letters to the mayor and city council
calling for the city to take action against a named construction
company, which were published in a local newspaper. 847 A.2d 1169,
1173 (Me. 2004).
IBD further argues that preventing it from invoking the
anti-SLAPP statute for Pipes' protected activity would cause
results not intended by the legislature. IBD argues Franchini’s
suit would have been barred if he had properly served Pipes,

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because she could then have invoked the anti-SLAPP statute as the
author of the piece. But since he failed to do so, Franchini would
be permitted to proceed against IBD alone, contrary to legislative
intention.
IBD next argues it was also engaged in petitioning
activity on its own behalf. We have previously described IBD's
uncontested declaration. IBD selected a columnist with a
particular viewpoint that aligned with its own. Both the
columnist’s and IBD’s views are discernible from the Op-Ed. The
Op-Ed also refers readers to further commentary and opinion "from
Investor's Business Daily." A banner embedded in the Op-Ed also
invites readers to "Get News From a Pro-Free Market, Pro-Growth
Perspective." 8 Because the district court did not address this
argument and the Gaudette footnote expressly reserved it, we think
8 All other requirements of the anti-SLAPP statute have
been met. If the defendant shows the claim is based on their
exercise of their right to petition, then the plaintiff must
produce some evidence that the defendant’s petitioning activity
"was devoid of any reasonable factual support" and caused actual
injury. Gaudette, 160 A.3d at 542. In making that determination,
the court must consider "the pleading and supporting and opposing
affidavits stating the facts upon which the liability or defense
is based." Me. Rev. Stat. tit. 14, § 556. Defendants have
submitted affidavits showing that Sally Pipes had reasonable
factual support for her Op-Ed, because she relied on public
records, a Government Accountability Office report, and news
reports in USA Today. Franchini has provided no evidence to the
contrary.

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this question is appropriately resolved by the Maine Law Court.
See 160 A.3d at 543 n.3.
We may certify a question to the Maine Law Court where
there are "questions of [Maine] law . . . that may be determinative
of the cause and . . . there is no clear controlling precedent in
the decisions of the Supreme Judicial Court." Me. R. App. P.
25(a).
IV. Conclusion.
We therefore certify the following question to the Maine
Supreme Judicial Court:
Should IBD’s special motion to dismiss be
granted under Me. Rev. Stat. tit. 14, § 556
(Maine’s anti-SLAPP law)?
We welcome any further comments the Law Court may have
on relevant Maine law. The Clerk of this court is directed to
forward to the Maine Supreme Judicial Court, under the official
seal of this court, a copy of the certified question, our opinion
in this case, and copies of the briefs and appendix filed by the
parties. We retain jurisdiction over this appeal pending
resolution of the certified question.

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