Supreme Court of the United States ------♦ ------ADVENTURE OUTDOORS, INC.; JAY WALLACE, a Georgia Resident; and CECILIA WALLACE, a Georgia Resident, Petitioners, V

No. ______======In The Supreme Court of the United States ------♦ ------ADVENTURE OUTDOORS, INC.; JAY WALLACE, a Georgia Resident; and CECILIA WALLACE, a Georgia Resident, Petitioners, v. MICHAEL BLOOMBERG, a New York Resident and Mayor of the City of New York; TANYA MARIE NOONER, a Georgia Resident; MELISSA MERCED, a Georgia Resident, of the Nooner Investigative Group, a/k/a Nooner Initiatives, Inc.; JOSEPH TOUNSEL, a Georgia Resident, of the Nooner Investigative Group, a/k/a Nooner Initiatives, Inc. (the Estate of Tanya Marie Nooner, deceased); THE NOONER INVESTIGATIVE GROUP, a/k/a Nooner Initiatives, Inc.; THE JAMES MINTZ GROUP, and JAMES MINTZ, individually, Certain of Its Other Principals & Agents, As Yet Unidentified; MICHAEL CARDOZO, Corporation Counsel of the City of New York; JOHN FEINBLATT, Criminal Justice Coordinator of the City of New York; and RAYMOND KELLY, a New York Resident and Chief of the New York City Police Department, Respondents. ------♦ ------On Petition For A Writ Of Certiorari To The Court Of Appeals Of The State Of Georgia ------♦ ------PETITION FOR WRIT OF CERTIORARI ------♦ ------BOB BARR* EDWIN MARGER LAW OFFICES OF EDWIN MARGER, LLC 44 North Main Street Jasper, Georgia 30143 706-253-3060 [email protected] Attorneys for Petitioners *Counsel of Record ======COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831 i

QUESTION PRESENTED

Whether the Georgia Supreme Court and Georgia’s inferior courts can ignore this Court’s mandates on appropriate and lawful restrictions of First Amend- ment freedoms and in so doing elevate the Georgia Anti-SLAPP (Strategic Lawsuits Against Public Participation) Statute verification requirement over those First Amendment parameters.

RULE 14.1(b) STATEMENT

A list of all parties to the proceeding in the court whose judgment is the subject of the petition is as follows: The Petitioners are: Adventure Outdoors, Inc. (a Georgia closely-held family Corporation) Cecilia Wallace, a Georgia citizen Jay Wallace, a Georgia citizen

The Respondents are: Michael Bloomberg, Mayor of New York City Michael Cardozo, Corporation Counsel of New York City The Estate of Tanya Marie Nooner (Ms. Nooner is a deceased Georgia investigator retained by the New York Respondents to enter Adventure Outdoors to attempt to simulate a “straw” purchase) John Feinblatt, Criminal Justice Coordinator of New York City Raymond Kelly, Chief of the New York City Police Department Melissa Merced, a Georgia citizen and a co- investigator with Ms. Nooner James Mintz and the James Mintz Group (an international investigative agency) Joseph Tounsel, a Georgia citizen and a co- investigator with Ms. Nooner iii

RULE 29.6 STATEMENT

Adventure Outdoor, Inc., a closely-held Georgia corporation (privately held) Wallace and Wallace, Inc., a closely-held Georgia corporation (privately held and the holding company for Adventure Outdoors, Inc.)

TABLE OF CONTENTS Page QUESTION PRESENTED ...... i RULE 14.1(b) STATEMENT ...... ii RULE 29.6 STATEMENT ...... iii TABLE OF AUTHORITIES ...... vi PETITION FOR WRIT OF CERTIORARI ...... 1 OPINIONS BELOW ...... 1 STATEMENT OF JURISDICTION ...... 2 CONSTITUTIONAL AND STATUTORY PROVI- SIONS INVOLVED ...... 2 STATEMENT OF THE FACTS OF THE CASE BELOW ...... 7 THE SUPREME COURT’S ESTABLISHMENT OF THE PARAMETERS OF “FREE” SPEECH AND THE APPROPRIATE INHERENT RE- STRICTIONS ON SPEECH ...... 15 THE REASONS TO GRANT CERTIORARI ...... 21 THE TITLE OF THE STATUTE SECTION AND ITS FAILURE TO PRECIPITATE (ON THESE FACTS) THE INTERPOSITION OF GEORGIA’S ANTI-SLAPP STATUTE ...... 23 CONCLUSION ...... 35

TABLE OF CONTENTS – Continued Page APPENDIX Remittitur from the Court of Appeals of the State of Georgia...... App. 1 Third Division, Court of Appeals of the State of Georgia Order of November 24, 2010 ...... App. 3 Superior Court Judge of Cobb County, Georgia, the Honorable George Kreeger Order of Sep- tember 30, 2009 ...... App. 13 United States District Court Judge, the Hon- orable Owen Forrester Order of September 21, 2007 (Redacted Order) ...... App. 18 Supreme Court of Georgia Denial of Petition for Certiorari on May 16, 2011 ...... App. 75 Denial of the Motion for Reconsideration of the Petition for Certiorari in the Supreme Court of Georgia of June 13, 2011...... App. 76 Petitioners’ Petition for Certiorari Before the Supreme Court of Georgia filed January 1, 2011 ...... App. 77 Motion for Reconsideration of the Denial of Certiorari Before the Supreme Court of Georgia ...... App. 108

TABLE OF AUTHORITIES Page

CASES Adventure Outdoors, et al. v. Bloomberg, et al., 06-1-9667-18 ...... 1, 29, 32 Aikens v. Wisconsin, 195 U.S. 194 (1904) ...... 31 Ajuelo v. Auto-Soler Co., 61 Ga. App. 216 (1939) ...... 26 Appeal Nos. 07-14966-HH and 15951-HH (appeal of 06-1-9667-18) ...... 1, 29, 32 Atlanta Humane Society v. Harkins, 278 Ga. 451, 603 S.E. 2d 289 (2004) ...... 22, 27, 28, 29 Chaplinksy v. New Hampshire, 315 U.S. 568 (1942) ...... 24 Civil Action File No. 06-1-9667-18 ...... 1, 29, 32 Civil Action No. 1:06-CV-2897-JOF. (R.31.) ..... 1, 29, 32 Cunningham v. State, 260 Ga. 827 (1991) ...... 24 Dun and Bradstreet, Inc. v. Greenmoss Build- ers, Inc., 472 U.S. 749, 105 S. Ct. 2939 (1985) ...... 21 Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974) ...... passim Hawks v. Hinely, 252 Ga. App. 510, 556 S.E. 2d 547 (2001) ...... 28 Herbert v. Lando, 441 U.S. 153 (1979) ...... 25 Masson v. Slaton, 320 F. Supp. 669 (N.D. Ga. 1970) ...... 32 New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710 (1964) ...... 11, 18, 26 vii

TABLE OF AUTHORITIES – Continued Page Rabun v. McCoy, 273 Ga. App. 311, 615 S.E. 2d 131 (2005) ...... 32 Schenck v. United States, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 (1919) ...... 32 Speiser v. Randall, 357 U.S. 513, 78 S. Ct. 1332, 2 L.Ed.2d 1460 (1958) ...... 18, 19 Thibadeau v. Crane, 131 Ga. App. 591 (1974) ...... 26

STATUTES AND RULES Ga. Code Ann. § 26-1307 ...... 32 O.C.G.A. § 9-10-113 ...... 4 O.C.G.A. § 51-5-4 ...... passim O.C.G.A. § 51-5-7(4) ...... passim O.C.G.A. § 9-11-11.1 ...... passim Sup. Ct. R. 10(c) ...... 8

CONSTITUTIONAL PROVISIONS State of Georgia Constitution, Art. 1. § 1, ¶ 5 ...... 3 State of Georgia Constitution, Amend. I ...... 34, 35 United States Constitution, Amend. I ...... passim

PETITION FOR WRIT OF CERTIORARI This is a Petition for a Writ of Certiorari by Petitioners, Adventure Outdoors, Inc. and Jay and Cecilia Wallace (Adventure Outdoors’ owners) from the dismissal of a defamation action alleging acts of defamation per se by the Respondents; the said defamation action was dismissed in the Georgia Courts because the Petitioners did not file a procedural verification statement (pursuant to O.C.G.A. § 9-11- 11.1) which the Georgia Courts held was necessary even in the face of false and malicious defamatory statements by Respondents. The dismissal is alleged by Petitioners to have completely ignored sound First Amendment precedent of this Court.

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OPINIONS BELOW A decision of the Court of Appeals of the State of Georgia dated November 24, 2010 affirming the judgment of the Superior Court of Cobb County, Georgia. A denial of certiorari by the Supreme Court of the State of Georgia dated May 16, 2011. A denial of the Motion for Reconsideration by the Supreme Court of the State of Georgia dated June 13, 2011.

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STATEMENT OF JURISDICTION Under Rule 10(c) of the Rules of the Supreme Court of the United States, each of the several State Courts of Georgia – Cobb County Superior Court, the Georgia Court of Appeals, and the Supreme Court of Georgia – have decided a case in direct conflict with this Court’s rulings on the First Amendment to the Constitution of the United States. By defining defamation per se to be “reasonably be construed as an act in furtherance of the right of free speech,” each of the Courts below entered rulings inconsistent with and in derogation of this Court’s rulings as it relates to the outer limits of the First Amendment to the Consti- tution of the United States, and coincidentally, the First Amendment to the Constitution of the State of Georgia. This Court has jurisdiction under 28 U.S.C. § 1257(a).

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CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Constitution of the United States, Amend- ment I: [Freedom of Religion, of Speech, and of the Press] Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, 3

and petition the Government for a redress of grievances. The Constitution of the State of Georgia: Art. 1. § 1, ¶ 5 (Bill of Rights) Paragraph V. Freedom of speech and of the press guaranteed. No law shall be passed to curtail or re- strain the freedom of speech or of the press. Every person may speak, write, and publish sentiments on all subjects but shall be re- sponsible for the abuse of that liberty. Official Code of Georgia Annotated, Section 9-11- 11.1 (O.C.G.A. § 9-11-11.1) O.C.G.A. § 9-11-11.1 (2011) § 9-11-11.1. Exercise of rights of freedom of speech and right to petition government for redress of grievances; legislative findings; verification of claims; definitions; procedure on motions; exception; attorney’s fees and expenses (a) The General Assembly of Georgia finds and declares that it is in the public interest to encourage participation by the citizens of Georgia in matters of public significance through the exercise of their constitutional rights of freedom of speech and the right to petition government for redress of grievances. The General Assembly of Georgia further

4 finds and declares that the valid exercise of the constitutional rights of freedom of speech and the right to petition government for a redress of grievances should not be chilled through abuse of the judicial process. (b) For any claim asserted against a person or entity arising from an act by that person or entity which could reasonably be construed as an act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Consti- tution of the United States or the Constitu- tion of the State of Georgia in connection with an issue of public interest or concern, both the party asserting the claim and the party’s attorney of record, if any, shall be required to file, contemporaneously with the pleading containing the claim, a written verification under oath as set forth in Code Sec- tion 9-10-113. Such written verification shall certify that the party and his or her attorney of record, if any, have read the claim; that to the best of their knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; that the act forming the basis for the claim is not a privileged communication under paragraph (4) of Code Section 51-5-7; and that the claim is not interposed for any improper purpose such as to suppress a person’s or entity’s right of free speech or right to petition government, or to harass, or to cause unnecessary delay or needless increase 5 in the cost of litigation. If the claim is not verified as required by this subsection, it shall be stricken unless it is verified within ten days after the omission is called to the attention of the party asserting the claim. If a claim is verified in violation of this Code section, the court, upon motion or upon its own initiative, shall impose upon the persons who signed the verification, a represented party, or both an appropriate sanction which may include dismissal of the claim and an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney’s fee. (c) As used in this Code section, “act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern” includes any written or oral statement, writing, or petition made before or to a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, or any written or oral statement, writing, or petition made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law. (d) All discovery and any pending hearings or motions in the action shall be stayed upon the filing of a motion to dismiss or a motion 6

to strike made pursuant to subsection (b) of this Code section. The motion shall be heard not more than 30 days after service unless the emergency matters before the court require a later hearing. The court, on noticed motion and for good cause shown, may order that specified discovery or other hearings or motions be conducted notwithstanding this subsection. (e) Nothing in this Code section shall affect or preclude the right of any party to any recovery otherwise authorized by common law, statute, law, or rule. (f) Attorney’s fees and expenses under this Code section may be requested by motion at any time during the course of the action but not later than 45 days after the final disposi- tion, including but not limited to dismissal by the plaintiff, of the action. Official Code of Georgia Annotated, Section 51-5- 4(a)(1) (O.C.G.A. § 51-5-4(a)(1)) O.C.G.A. § 51-5-4. Slander defined; when special damage required; when damage inferred. Slander or oral defamation consists in: Imputing to another a crime punishable by law;

Official Code of Georgia Annotated, Section 51-5- 7(4) (O.C.G.A. § 51-5-7(4)) O.C.G.A. § 51-5-7 (2011) § 51-5-7. Privileged communications The following communications are deemed privileged: (4) Statements made in good faith as part of an act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Consti- tution of the United States or the Constitu- tion of the State of Georgia in connection with an issue of public interest or concern, as defined in subsection (c) of Code Section 9-11-11.1;

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STATEMENT OF THE FACTS OF THE CASE BELOW This case is brought to the Supreme Court on a Petition for a Writ of Certiorari because the decisions of the Georgia courts below serve to improperly and unconstitutionally expand the limits of a proper scope of the exercise of “free” speech in a context not here- tofore presented to this honorable Court. This, Peti- tioners believe, is a case of first impression before this Court. However, the roots of the case were formed in a plan by New York City Mayor Michael Bloomberg designed to tackle what he believed to be a problem of 8 firearms improperly entering his City. It is brought to this Court within the purview of Rule 10(c) of the Court in that it frames a question that was decided by a Supreme Court of one of the several states in conflict with the rulings of this Court concerning the appropriate reach and breadth of the First Amend- ment to the Constitution of the United States. This matter began sometime before April 8, 2006 in New York City, when the Mayor of New York, Michael Bloomberg, decided his City had a problem with firearms. He commissioned his Criminal Justice Coordinator, John Feinblatt, and other employees, in conjunction with a private New York based law firm, to create a plan to go beyond the jurisdictional bound- aries of New York City, and to purchase firearms under certain rehearsed conditions to be enacted by locally-hired private investigators, but without significant controls on the said investigators’ conduct. Thereafter, the City of New York brought suit in federal court in New York City (E.D.N.Y., Brooklyn Division before the Honorable Jack Weinstein) against those Federal Firearms Licensees which did business in other states but not in the State of New Yo r k, who responded to the rehearsed, uncontrolled scenarios in ways not in accord with Mayor Bloom- berg’s views. Neither the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) nor local law enforcement were contacted prior to the unfold- ing of the self-styled, private “sting” operation (or thereafter) by Mayor Bloomberg or any of his agents. 9

More specifically, the plan, devised in a manner not unlike classic criminal conspiracies, sought to hire allegedly licensed investigators in a number of states, have two of them enter Federal Firearms Licensee (FFL) locations without revealing their true purpose, lie to the salespeople about their designs and purposes, and try to replicate what are known as “straw purchase firearms sales.” (A “straw purchase” is accomplished when one person buys a firearm for another.) Those licensed firearms retailers then became targets of the civil lawsuits planned all along to be brought in the Eastern District of New York, and which were in fact so prosecuted. The fundamental factual underpinning of this case and the locus of the announcement of the subsequent lawsuit present the core issue that has repeatedly and systematically caused dismissal after dismissal in the courts of Georgia as against the Plaintiffs herein. The Georgia “Anti-SLAPP” (Stra- tegic Lawsuits Against Public Participation) law (codified at Sec. 9-11-11.1, O.C.G.A.) requires a verification to be filed if the words which provide the basis for the lawsuit, “could reasonably be construed as an act in furtherance of the right of free speech or the right to petition government of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern.” Petitioners herein, in suing Mayor Bloomberg, et al. in Georgia for making and publishing defamatory statements about petitioners related to the lawsuits filed by the City of 10

New York in New York, did not make such a verification – believing then and asserting now that such a requirement is neither necessary nor appropriate. One of the targeted dealers was Adventure Outdoors, Inc. (“Adventure Outdoors”), a Petitioner herein, located in Smyrna, Georgia – a family-owned- and-operated business which sells hunting and camping equipment, as well as firearms to law enforcement agencies and personnel, and to the general public. At the time, the New York Defendants had nothing on which to base their “sting” operation targeting Adventure Outdoors other than ATF “trace data” (which relates only to sales by federally licensed man- ufacturers, distributors and dealers and not subsequent transactions by persons not holding federal firearms licenses), and the fact that in a six-year period (1994-2000), 21 firearms that had previously been sold to purchasers in Georgia by Adventure Outdoors had been retrieved in New York by law enforcement. The New York Defendants did not know how many firearms during that six-year period Adventure Outdoors had sold, nor did they attempt to determine how many. In fact, the total number of firearms sold by Adventure Outdoors to purchasers in Georgia during those years was approximately 42,000; and thus the 21 “discovered” later in New York represented less than 0.005% of all firearms sold by Adventure Out- doors. Moreover, from the date Adventure Outdoors 11

began operations in 1978 (as Wallace & Wallace, the predecessor of Adventure Outdoors), more than 60,000 firearms had been sold; and some of those may well be a part of the 21, which would make the number infinitesimally small (0.003%). Therefore, the New York Defendants did not know the percentage of sales in that six-year period represented by the extremely small number of firearms later retrieved in New York and “traced.” The New York Defendants did not know of the reputation of Adventure Outdoors or its owners generally; or of their reputation specifically with the ATF, the federal agency charged with the responsibil- ity of interdicting illegal sales of firearms. The New York Defendants made no attempt whatsoever to determine that reputation. In other words, the New York Defendants (before their defamatory outbursts noted herein below) knew almost nothing about the Petitioners herein, nor did they make the slightest effort to learn about the said Petitioners. Importantly, the Petitioners are “private” and not “public” persons within the meaning of New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710 (1964). On May 15, 2006, Mayor Bloomberg and others, including his employees and supporters, after filing a lawsuit against Adventure Outdoors in federal court in the Eastern District of New York – and before service thereof on Adventure Outdoors – held a press conference ostensibly to announce the lawsuit. (Law- suit, E.D.N.Y., 06-cv-2233) In that press conference, which was reported widely across the country, including in the Atlanta Journal-Constitution, the New York 12

Mayor and others spoke as follows, after having displayed the lawsuit in which Adventure Outdoors was named as a Defendant (emphases added): y “ – and most are sold by a small [group] of rogue gun dealers who refuse to obey federal laws.” y “Caught them . . . breaking the Federal laws regulating gun sales.” y “group of bad apples who routinely ignore federal regulations.” y “stop your illegal conduct or you too will face this kind of penalty. . . .” y “ . . . holding gun dealers who break the law accountable. . . .” y “Plain and simple these dealers have New Yorkers’ blood on their Hands. . . .” y “ . . . lost their lives . . . as a result of this deadly commerce. . . . these dealers are . . . careless . . . reckless.” These are the public statements that are slanderous of the Plaintiffs herein; and which formed the basis of the subsequent action against the New York De- fendants. These statements – asserted by Petitioners herein to be untrue and defamatory, and which are, in fact, untrue – were made by the Mayor, the Criminal Jus- tice Coordinator, the Corporation Counsel, and the Chief of the New York City Police Department. They were broadcast by print media, by electronic media 13 and by TV and radio broadcasts virtually everywhere in the country (including Georgia, home to Adventure Outdoors) which was the intention of the speakers. In response, Petitioners herein – the Wallace family, owners of Adventure Outdoors (people never charged or convicted of any crime) – filed suit in Cobb County Superior Court on or about October 29, 2006. The lawsuit is Civil Action File No. 06-1-9667-18. A verification (as would be required if Anti-SLAPP, O.C.G.A. § 9-11-11.1, applied here) was not filed, insofar as, after investigation and research, the Peti- tioners and their Counsel determined that on the facts of this case the statute was inapplicable and was never intended to have applied to such action. It was and is inapplicable because the statements articulated above were NOT able to “reasonably be construed as an act in furtherance of the right of free speech.” Moreover, the statements exceeded the bounds of permissible speech (as delineated by this Court in regard to “private” persons) such as to far exceed “the right to petition government . . . in connection with an issue of public interest and concern.” There is no dispute there was a “protected petitioning activity” in announcing the lawsuit. However it is the attendant defamations that exceeded the “protected petitioning activity” that are the subject of the lawsuit. The Defendants removed the action to the United States District Court for the Northern District of Geor- gia, and in that locus the case became Civil Action No. 1:06-CV-2897-JOF. The Honorable Owen Forrest- er of that Court, to date, has done the only careful 14 analysis of the matter (App. pages, 20-74). The Peti- tioners filed a Motion to Remand and after significant briefings and an appeal to the Eleventh Circuit (Appeal Nos. 07-14966-HH and 15951-HH), on the 20th day of January, 2009 the United States Court of Appeals for the Eleventh Circuit ordered the District Court Judge to remand to Cobb County Superior Court. On February 25, 2009, the U.S. District Court did remand. As stated above, the only complete analysis which has been produced in the matter to date was that by the Northern District of Georgia Judge on September 21, 2007; and Petitioners have included the said Order in the Appendix hereto for this Court’s consideration because that analysis included an insightful analysis of the nature of the speech in question. In Cobb County Superior Court (State of Georgia), the New York Defendants renewed their Motion to Dismiss based on the Defendants’ position that this matter fell within the purview of Anti-SLAPP and in the absence of the verification the case should be dismissed. The Plaintiffs continued to assert, as they had consistently done from the inception of the litigation, that this was not a matter within the scope or intent of O.C.G.A. § 9-11-11.1, Georgia’s Anti-SLAPP. The Petitioners’ lawsuit meets none of the Georgia Court-articulated descriptions of when Anti-SLAPP applies, and exceeds this Court’s proper parameters and decisions recognizing what constitutes “protected speech.” All of the record is contained within Briefs, with the lone exception of a single hearing with argument 15

only (no witnesses) held on June 15, 2009 in Cobb Superior Court, Judge George Kreeger presiding. On the 30th day of September 2009, the Superior Court Judge, the Honorable George Kreeger, dismissed the action without explanation as to the basis of the determination as to why Anti-SLAPP is applicable (by written Order), and thereby determined that the Anti-SLAPP verification should have been filed. Each of the arguments here was made in the Briefs below and/or at the hearing. The Court of Appeals of Georgia (Third Division, Barnes, P.J., Blackwell, and Dillard, J.J.) upheld and affirmed the Kreeger Order (App. pages, 1-12); the Supreme Court of Georgia denied Certiorari (May 16, 2011, App. page 75) and denied a Motion for Recon- sideration (June 13, 2011, App. page 76). This Petition for Certiorari is grounded in this Court’s decisions, in opposition to what Georgia courts have ruled, establishing the parameters of First Amendment determinations as to when speech is “free” and thereby protected.

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THE SUPREME COURT’S ESTABLISHMENT OF THE PARAMETERS OF “FREE” SPEECH AND THE APPROPRIATE INHERENT RESTRICTIONS ON SPEECH Here, a predominantly procedural predicate is undermining, if not obliterating substantive First Amendment rights and responsibilities. This case is 16

not, Petitioners assert respectfully, an Anti-SLAPP case. It has never been a Georgia Anti-SLAPP case. This is because the words utilized by Defendants were not protected nor could they “reasonably be construed as an act in furtherance of the right of free speech,” and therefore are not protected speech. The words in this case cannot reasonably be construed as such; they were defamatory, false and malicious and, at minimum, they were uttered with a reckless disregard for the truth. Petitioners’ Complaint, filed October 29, 2006, did not seek to curb “free” speech or speech “reasonably to be construed as an act in furtherance of the right of free speech”; nor did it seek to restrict the right to petition government for a redress of grievances – on the contrary, it sought redress for prohibited speech that is properly regulated and therefore can provide the proper predicate for a defamation suit such as was properly filed by Petitioners herein without an unnecessary and procedural “verification.” The Georgia Courts simply ignored substantive considerations and elevated procedure over substance. The action was not filed for an improper purpose, and it certainly did not have either a practical or theoretical “chilling effect” on the Defendants; some- thing the Anti-SLAPP statute is intended to prevent. In fact a month or two later, the New York Defen- dants filed another almost identical action against 12 other Federal Firearms Licensees – hardly evidence their actions had been “chilled” by the filing of the Georgia lawsuit by Adventure Outdoors and the Wallaces. 17

Petitioners’ Complaint was simply an action to seek redress for slander committed by those outside the state of Georgia, whose comments were unpro- tected, which violated Georgia’s defamation per se statute (O.C.G.A. § 51-5-4), and where the said statements were maliciously made against Georgia citizens in violation of this Court’s express prohibitions as mandated by a series of decisions. The effect of the decisions of the courts in Georgia, including the Georgia Supreme Court, is insidious, in that it serves to elevate the technical verification requirement contained in Georgia’s Anti-SLAPP statute, O.C.G.A. § 9-11-11.1, to a position superior to the First Amendment to the Constitution of the United States and the First Amendment to the Constitution of the State of Georgia. The decision effectively trans- forms all “speech” into “protected speech”; however malicious and however recklessly stated in complete disregard of the truth. The decision ignores the nature, the intent and the substance of the speech, and focuses solely on its contextual setting; in this case the setting of the “announcement” of a lawsuit. It should be noted and called to the Court’s attention that there has never been a complaint about the East- ern District of New York lawsuit nor its announcement, only the excess of the Respondents. The decisions below ignore the fact that the Peti- tioners herein were “private” citizens and not “public” persons. The decisions below ignore and effectively decimate the “good faith” requirement of O.C.G.A. § 51-5-7(4), the law in Georgia defining “privileged 18

communications” in the context of Anti-SLAPP. Finally, the decisions obviate the effect of O.C.G.A. § 51-5-4, which defines “slander” per se under Georgia law. That definition and all the espoused definitions herein, claim to comport with this Court’s definitions consistent with First Amendment mandates, in con- cert with all and each of the previous rulings. This Court, in the landmark case of New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710 (1964), addressed the role of the courts in a free-speech context. As stated in Sullivan: “This Court’s duty is not limited to the elaboration of constitutional principles; we must also in proper cases review the evidence to make certain that those principles have been constitutionally applied. This is such a case, particularly since the question is one of alleged trespass across ‘the line between speech unconditionally guaranteed and speech which may be legitimately regulated.” Speiser v. Randall, 357 U.S. 513, 525, 78 S. Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958); as cited in New York Times v. Sullivan, 376 U.S. 254, 285, 84 S. Ct. 710, 728, 11 L. Ed. 2d 686 (1964). The speech in question here cannot be countenanced regardless the setting, and should be legitimately regulated. There are a multitude of reasons for this, all of which have been ignored by the state courts below. The case herein is not merely an “alleged trespass across ‘the line . . . ,’” instead it is an 19

obliteration of the “line.” If ever there was a matter that called into recognition the term Res Ipsa Loquitor, this is it. The words of these Defendants speak loudly and clearly for themselves. However, as this Court in Speiser (supra) determined, there must be a “review” of the evidence; and nothing in the case before this Court supports any inference there has, to date, been a “review” of the evidence. If the First Amendment right to freedom of the press (a right substantially more broadly appropriate than any alleged right to defame when announcing a lawsuit) does not create absolute immunity for all words uttered, then a fortiori neither can Anti-SLAPP in Georgia do so. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974). That, however, is precisely what has occurred here. The holding in Gertz is substantial precedent, and should be definitive, as a primary consideration in this case, in determining the appropriateness for a grant of Certiorari. It involves clearly recognized First Amendment protection analysis, and is not merely a state statute regarding policy. Petitioners assert that Gertz and its progeny present the correct analysis; an analysis which the Georgia courts below were obli- gated to undertake but failed to do so. The analysis in this case simply does not support any reasonable conclusion other than that Gertz applies. The words in the statute, “reasonably be construed as an act in furtherance of the right of free speech,” place a predicate (a condition precedent) that 20 the speech be of a nature so as to be capable of being determined to be “free.” In petitioning for a redress of grievances, all other constitutional matters are not somehow rendered nullities. The speech herein uttered by the New York officials, and complained of by Petitioners, cannot now nor can it ever be free “or reasonably be construed as an act in furtherance of the right of free speech . . . .” The disjunctive “or” in O.C.G.A. § 9-11-11.1(b) (in bold italics below in the statute) doesn’t change this conclusion; and, if it does, then the statute is unconstitutional as a violation of the First Amendment to both the United States and Georgia Constitutions. Respectfully, either the denial of the appeal and Certiorari by the Georgia appellate courts was based on an unconstitutional application of O.C.G.A. § 9-11- 11.1, or the statute as written is unconstitutional in that the First Amendment must always be considered and followed. The First Amendment and this Court’s legitimate parameters established for the Amend- ment have been completely ignored by all of the Georgia courts considering the question contained in this Petition. The disjunctive “or” in the statute (O.C.G.A. § 9-11-11.1) cannot elevate the petitioning process above fundamental constitutional considerations, decisions, and parameters.

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THE REASONS TO GRANT CERTIORARI Anti-SLAPP is defined by its title in the State of Georgia as “Strategic Lawsuits Against Public Participation.” First, and most importantly, the Georgia courts have by the actions in this case impermissibly re- defined the parameters of “free” speech and thereby the parameters of speech that can “reasonably be construed as an act in furtherance of the right of free speech.” Moreover, in doing so the Georgia courts have provided blanket authority to do whatever is not overtly forbidden in a determination of what a “petition for redress of grievances” is and how it is justified. Here, the false and defamatory language employed by the New York Defendants does not present a matter of public concern; certainly not in the classic sense of Dun and Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S. Ct. 2939 (1985). The speakers (Bloomberg, et al.) instead crossed the line and ventured into non-protected and prohibited speech. Thus, even if the speakers began their adventure in protected speech and activity, the venture went far beyond the initial protection. The speakers were non-media; the damaged persons were private and thus there was no appropriate balance that was conducted under either Georgia law or federal law. Second, this Court should consider the prohibited “nature” of the speech in question, and not 22

merely the location of where the words were spoken. (See, Gertz argument, infra.) Third, and this is a segue into the duties of the Georgia Supreme Court pursuant to Atlanta Humane Society v. Harkins, 278 Ga. 451, 603 S.E. 2d 289 (2004) which are identical whether the Anti-SLAPP “verification” was filed or not, and the failure to per- form the said duties constitutes a pro forma violation of this Court’s First Amendment holdings. The threshold question dictating whether Anti-SLAPP applies at all, is whether the statements must “reasonably be construed as an act in furtherance of the right of free speech.” According to Harkins, the trial court, when presented with a lawsuit alleging defamation as in the case herein below, must undertake such analysis. Then, but only then, can dismissal occur if the trial court determines: (a) claimant, nor claimant’s attorney, did not reasonably believe the claim was grounded in fact and warranted by existing law or a reasonable extension thereof (please see, O.C.G.A. § 51-5-4 to answer this question); or the claim was interposed for an improper purpose (this assertion is ludicrous and is belied by the fundamental facts as outlined throughout this case); or the Defendant’s statements were privileged under O.C.G.A. § 51-5-7(4). That requires they were made in “good faith.” No one of these standards or duties was fulfilled here; as the Georgia courts ignored the rules of extreme parameters that are established by the Supreme Court of the United States concerning the appropriate limits of “free” speech. 23

Fourth, Petitioners believe this is where this Court should begin and thereby end – with the purpose of the statute and an analysis of the clear meaning of the words contained therein. They are not a mystery and the rules of construction delineate the method of interpretation and of dissection. There was herein no strategy by Petitioners to deter “public participation,” and the within-contained lawsuit did not, in fact, deter “public participation”; nor was it intended to do so, and no compelling argument can be made that it was so intended.

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THE TITLE OF THE STATUTE SECTION AND ITS FAILURE TO PRECIPITATE (ON THESE FACTS) THE INTERPOSITION OF GEORGIA’S ANTI-SLAPP STATUTE Petitioners’ lawsuit was very specific; very targeted; and very personal. There was nothing “strategic” about it. The very definition of “strategic” makes this clear: “Important or essential in relation to a plan of action.” “Strategic” means that an ulterior motive applies, that there is indeed a goal or a purpose beyond the terms of the action itself; herein the action speaks for itself. Petitioners ask this Court, what could that so-called “strategy” have been? Was Petitioners’ lawsuit an act that was in any manner designed to create a strategic advantage in the E.D.N.Y. lawsuit filed by Defendants? Was Petitioners’ lawsuit designed to (in some unknown manner) deter the Mayor of New York City, Michael Bloomberg, et al. 24

from exercising constitutional rights afforded them? These were not the express or implied purposes of the lawsuit; and had they been, the suit failed miserably – a number of months later Mayor Bloomberg filed a similar action against a multitude of other Federal Firearm Licensees. There is nothing in Petitioners’ lawsuit that renders any Defendant unable to engage in or be “chilled” from involvement in regard to any “public participation.” In other words, were these players in any manner dissuaded from continued and continu- ing “public participation?” The answer, of course, is that they were not so dissuaded; nor could they be. On the face of Petitioners’ action, it is also clear there was no strategic or ulterior motive. The Supreme Court of Georgia discussed speech in Cunningham v. State, 260 Ga. 827, 828 (1991); holding that, “the curtailment of certain categories of speech does not raise constitutional problems provided the statutes regulating them are narrowly drawn. Among these categories are ‘the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words – those which by their very utterance inflict injury . . . .’” id. (citing Chaplinksy v. New Hampshire, 315 U.S. 568 (1942)). Yet the Georgia Supreme Court overlooked and failed even to either consider the “nature” of the words herein or the constitutional restrictions this Court has placed on such words. The Georgia courts instead focused only, and improperly, on the locus wherein the words were spoken, the announcement of a lawsuit. 25

There are myriad reasons why the Georgia Anti- SLAPP statute does not apply to the facts of the case below, but the most important one is the “speech” itself. To conclude that the complained-of “speech” is found to “reasonably be an act in furtherance of the right of free speech,” undermines at least two Georgia Statutes – O.C.G.A. § 51-5-4 and O.C.G.A.§ 51-5-7(4) – and renders the clear language of those statutes meaningless. Of no small importance as well, such a misinterpretation destroys this Court’s fundamental analyses of what are the rights and responsibilities mandated by the First Amendment. Gertz, supra, is truly the most pertinent and applicable analytical vehicle by which the facts here presented before the Court can be most soundly considered. Each and every one of the above-quoted statements spoken by the Defendant New Yorkers was false. Moreover, the truth of the statements was apparently never investigated. The statements as made, were either maliciously false, or uttered with complete reckless disregard for the truth. False statements are not immunized by the United States Con- stitution. U.S. Const. Amend. I; Herbert v. Lando, 441 U.S. 153, 171 (1979); and Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974). Moreover, the New York De- fendants, and each of them, were unconcerned with the truth. “The privilege of free speech does not confer upon one individual the right to use that privilege to the injury of another, and if one prints or publishes words concerning another, or his business, which are 26 themselves false, the law will presume it was done maliciously . . . .” Ajuelo v. Auto-Soler Co., 61 Ga. App. 216, 222 (1939). In Thibadeau v. Crane, the Georgia Court of Appeals addressed the issue of a statement made with actual malice, “ ‘that is, with knowledge that it was false or with reckless disregard of whether it was false or not,’ ” holding that there “is no privilege protecting the use of calculated falsehood.” Thibadeau v. Crane, 131 Ga. App. 591, 592 (1974) (quoting New York Times v. Sullivan, 376 U.S. 254, 279 (1964)). That is exactly what happened here; and the Georgia courts – in elevating O.C.G.A. § 9-11-11.1 over the First Amendment and this Court’s decisions concerning the parameters of same – created a new and wholly unconstitutional guideline-set for the First Amendment. The fundamental gravamen of this matter turns on the core question as to whether, on the facts of this case, Anti-SLAPP is applicable at all; and if applicable, can this particular state statute erase the long- standing doctrines of core First Amendment policy? Are the words in question here, “reasonably (to) be construed as [acts] in furtherance of the right of free speech?” They are not, and therefore the words cho- sen to be spoken by Defendant Bloomberg and his assistants in the venture of 2006 are not “protected words”; and a fortiori Anti-SLAPP is not implicated. The dismissal below must be reversed; and the matter should properly proceed to trial. The numbered paragraphs below synthesize the sub-parts of the fundamental question for the Court: 27

1. Are the excessive, malice-laced and untrue words uttered by the New York officials not “free,” and therefore properly prohibited or restricted? 2. Are the words utilized by the then- about-to-be-Defendants (New York Mayor Bloomberg, et al.) even close to being in- terpretable as to “reasonably be construed as an act in furtherance of the right of free speech” or “ ‘reasonably to be construed as an act’ . . . in furtherance of ‘the right to petition government . . . ’?” 3. Does the setting and the purported purpose alone, even if combined (where the speakers defamed the Plaintiffs) offer protection to the speakers without fulfilling the predicate requirements of the interlaced statute O.C.G.A. § 51-5-7(4); that is, a “good faith” requirement? 4. Is the Anti-SLAPP statute inapplicable to any of the speakers, the words, or their purpose? 5. Did the Courts below abdicate their responsibilities dictated by the Georgia Supreme Court in Atlanta Humane So- ciety, et al. v. Harkins, 278 Ga. 451 (2004); and, in so doing, abdicate their burden of a proper analysis of the First Amendment’s lawful and justified restrictions? 6. Had the Georgia Supreme Court fulfilled its Harkins duties, would it not have 28

inevitably come to a proper conclusion concerning its First Amendment duties? The rule of analysis applies by the clear language of Harkins, whether the verification is defectively filed or not filed at all. “The third sentence, [of subsection (b) of the statute] which requires that the claim be stricken unless verified within ten days, applies ‘[i]f the claim is not verified as required by this subsection. . . .’ Thus, the third sentence applies whenever a verification fails to comply with each procedural requisite in the first two sentences, regardless of whether ‘the verification is completely omitted or merely deficient upon filing. . . .’” Hawks v. Hinely, 252 Ga. App. 510, 515(1)(c) (556 S.E. 2d 547) (2001) (emphasis Petitioners’). Harkins requires three explicit actions by the court: 1. A determination that the statements were made in good faith; 2. a determination that the claim was interposed for an improper purpose; and 3. a determination that (the claim) was made without a reasonable belief that it was well grounded in fact and is warranted by good faith reliance on existing substantive law. (Atlanta Humane Society v. Harkins, 278 Ga. 451, 603 S.E. 2d 289 (2004)). 29

None of the Supreme Court of Georgia’s Harkins requirements have been fulfilled, nor could they be on the facts of this case. Those requirements were interposed to provide certainty that O.C.G.A. § 9-11-11.1 had applicability. However, there is another even more compelling predicate requirement, and that is whether the speech is free or even able to “be reasonably construed as an act in furtherance of the right of free speech” in the first place. Thus, in Harkins, id., the Georgia Supreme Court interposed a procedure to insure that the First Amend- ment was properly applied, but then in the matter herein below simply ignored its own rule and procedure and, in so doing, rendered the First Amendment a nullity. This truly is a Gertz-based matter (Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, (1974)), and even with the interposition of Georgia’s Anti-SLAPP, O.C.G.A. § 9-11-11.1, the analysis must be both First Amendment parameter-limited and in- terpretative of the First Amendment. Gertz, id., interrelates and presents each of the issues before the Supreme Court in the case of Adven- ture Outdoors, et al. v. Bloomberg, et al. 06-1-9667-18 Gertz is a case that implicates, as the case being considered by this Court, a volatile mix of public issue comment vis-a-vis freedom of speech issues (which, of course, is both an Anti-SLAPP and pure First Amend- ment consideration). When speaking on a matter of public concern (as alleged here), can the speaker 30 transgress ordinary and necessary parameters of speech which is “free” and speak wantonly, falsely and maliciously, without any prohibitions even in light of Supreme Court rulings to the contrary? Gertz (Gertz, supra) states “no,” and Petitioners assert the same answer. Gertz, id., stands for the proposition that there is an ongoing tension between the First Amendment and what is appropriate to (either) a public or private figure, as it relates to defamation. Clearly a private figure is protected at a greater level than a public figure. In five years of litigation below, no member of the defense team, and no Defendant, has proclaimed that any Petitioner- Plaintiff is a “public” figure. Therefore, on any inter- pretative level, there is no “public” figure herein who has been defamed. Instead, there are “ ‘private’ citizens who have been dragged into the public arena falsely, wantonly and without any viable or justifiable reason.” Gertz, id., importantly, was in relation to a matter of public concern. Thus, even if there is a statute (such as Georgia’s Anti-SLAPP), the analysis is four-square the identical analysis as was done in Gertz, id. The Courts below erred when all and each of them concluded that the verification provision of O.C.G.A. § 9-11-11.1 was a mandatory requirement in this case. Respectfully, there can be no such requirement when considered in a proper “free speech” context. This is true because First Amendment “free speech” is an essential predicate before any state’s 31

Anti-SLAPP’s (including Georgia’s) provisions come into play. By its ruling, the Courts below held, in effect, any “speech,” though it be false and malicious and/or stated with a reckless disregard for truth, is “arguably in furtherance of the right of free speech.” This ruling is in direct conflict with this Court’s parameters of the scope of First Amendment rights and restrictions. Such consequence clearly stretches the Anti-SLAPP statute far beyond its intended or reasonable scope. The speech here complained of is “properly prohibited speech.” The Anti-SLAPP statute has, as its primary purpose, the protection of those who seek to utilize the Court system for redress of grievances on matters of public concern. First, and of primary importance, is that the words spoken here were not and cannot be “free.” Language has restrictors in a society of laws. As stated by Mr. Justice Holmes, citing Aikens v. Wisconsin, 195 U.S. 194, 25 S. Ct. 3, 49 L. Ed. 154 (1904),1 “[t]he most stringent protection of free speech

1 “An act, which in itself is merely a voluntary muscle con- traction, derives all its character from the consequences that will follow it under the circumstances in which it was done. When the acts consist of making a combination calculated to cause temporal damage, the power to punish such acts, when done maliciously, cannot be denied because they are to be followed and worked out by conduct that might have been lawful if not preceded by the acts. No conduct has such an absolute privilege as to justify all possible schemes of which it may be a part.” Aikens, 195 U.S. at 206. 32 would not protect a man in falsely shouting fire in a theatre and causing panic.” Schenck v. United States, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 (1919). The key word in the above-quoted language is “falsely.” This simple mandate has been followed consistently, as it should. Former Chief Judge Henderson of the United States District Court for the Northern District of Georgia, in upholding the constitutionality of Ga. Code Ann. § 26-1307 in Masson v. Slaton, 320 F. Supp. 669 (N.D. Ga. 1970), wrote “[t]he right to free speech is not an unlimited right”; indeed it is not, and the present Defendants’ words far exceeded any rational barrier. Here, though, the lower state courts’ rulings improperly and illicitly provided an absolute privilege to whatever speech is utilized if it is spoken after filing a lawsuit. New York has such a privilege; but Georgia does not. “Proof that the defendant acted with actual malice in making the statement . . . defeats the defense of privilege.” Rabun v. McCoy, 273 Ga. App. 311, 615 S.E. 2d 131 (2005). The locus of the speech does not trump or nullify the First Amend- ment to the Constitution of the United States. Nor does it obviate the requirement of a proper First Amendment analysis. Yet no such analysis was ever conducted in the Adventure Outdoors matter herein below. Instead, what was done was to elevate the verification provision of O.C.G.A. § 9-11-11.1 to a place superior to the First Amendment; to protect speech that is not protected. 33

Since New Yorkers appear to enjoy such an un- bridled “right” to say whatever they want in the broad context of a lawsuit, the Defendants here may have felt completely free to disregard the truth, speak in extreme and unwarranted false terms, and with reckless disregard for the truth. The only exception in a defamation per se action is the “truth.” There is no exception that is controlled by Georgia’s Anti-SLAPP statute. Here, there was no “truth” and, therefore, there is no exception. There is only one defense to false malicious defamatory statements as outlined above, and that defense is truth. This is Georgia law and indeed the law of the several states. There is no Georgia statute, nor is there a holding, other than the one in the courts below, which ignores fundamental First Amendment restrictions. The allegations by the New York Defendants were false accusations of criminal misconduct on the part of the Petitioners. The setting cannot and – Petitioners assert, does not – interpose a requirement that the Georgia Anti-SLAPP verification becomes a necessary predicate to suit and to achieving a day in court by the Petitioners-Plaintiffs. To hold otherwise, as have the courts in Georgia to this point, is a perversion of every basic reason for Anti-SLAPP. Anti-SLAPP was intended to protect those who sought access to the courts on matters of public concern, not those who defame. Anti-SLAPP was intended to protect the least of our citizens as against the most powerful; here, it 34 has been employed to protect the powerful from the average citizen. The statements themselves are the foremost reason that demand their exclusion from Anti-SLAPP. We ask this Court in considering to grant or not grant Certiorari, to view the statements in the real meaning ascribed to them. Without basis, and for no other reason (certainly not truth), the Defendant speakers did what is most abhorred in a free society. They improperly, illicitly, falsely and without due regard for the truth called their fellow citizens criminals when nothing could have been farther from the truth. They should not skate free without being held accountable, simply because of a misapplication of a Georgia law never intended to shield them. This misapplication is a clear and compelling violation of the First Amendment to the Constitution of the United States and the Constitution of the State of Georgia, and should not be countenanced or allowed by this Court.

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CONCLUSION WHEREFORE, Petitioners ask this Court to grant Certiorari and ultimately to rule that the conduct of the Georgia courts is violative of the First Amendment to the Constitution of the United States and concurrently to the Constitution of the State of Georgia. Respectfully submitted,

BOB BARR* EDWIN MARGER LAW OFFICES OF EDWIN MARGER, LLC 44 North Main Street Jasper, Georgia 30143 706-253-3060 [email protected] Attorneys for Petitioners *Counsel of Record App. 1

REMITTITUR Court of Appeals of the State of Georgia ATLANTA, NOVEMBER 24, 2010 The Court of Appeals having met, the following judgment was rendered: COURT OF APPEALS CASE NO. A10A1439 ADVENTURE OUTDOORS, INC. ET AL V. MICHAEL BLOOMBERG ET AL This case came before this court on appeal from the SUPERIOR Court of COBB County; it is considered and adjudged that THE JUDGMENT OF THE COURT BELOW BE AFFIRMED. BARNES, P.J., BLACKWELL AND DILLARD, JJ., CONCUR. LC NUMBERS: 0619667 Court of Appeals of the State of Georgia Clerk’s Office, Atlanta, JUN 16, 2011 I certify that the above is a true ex- tract from the minutes of the Court of Appeals of Georgia Witness my signature and the seal of said court hereto affixed the day and year last above written. Clerk. App. 2

Court of Appeals Cost $300.00. O.C.G.A. Sec. 5-6-10. No costs are payable to the Court of Appeals. /s/ Holly K.O. Sparrow

App. 3

THIRD DIVISION BARNES, P. J., BLACKWELL and DILLARD, JJ. NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4(b) and Rule 37(b), February 21, 2008) http://www.gaappeals.us/rules/ November 24, 2010 In the Court of Appeals of Georgia A10A1439. ADVENTURE OUTDOORS, INC. v. BLOOMBERG, et al.

BARNES, Presiding Judge. Adventure Outdoors, Inc., a Georgia business that sells firearms, appeals the dismissal of its slander complaint against New York City Mayor Michael Bloomberg, The Nooner Investigative Group, Tanya Marie Nooner, Melissa Merced, Joseph Tounsel,1 The James Mintz Group,2 James Mintz, Michael Cardozo,3 John Feinblatt,4 and Raymond Kelly.5 The trial court

1 Nooner, Merced, and Tounsel were Georgia residents associated with the Nooner Investigative Group of private detectives 2 Apparently another group of private detectives. 3 The City’s Corporate Counsel. 4 The City’s Criminal Justice Coordinator. 5 The City’s Chief of Police. App. 4 dismissed the suit because Adventure Outdoors failed to submit the affidavit required by OCGA § 9-11-11.1, the Georgia Anti-Strategic Lawsuit Against Public Participation (“SLAPP”) Statute. The trial court found that the statements in the complaint were made by officials in the context of providing information to the public about a public nuisance lawsuit filed by the City of New York against a number of gun dealers, including Adventure Outdoors. The court further found that the acts by the defendants alleged in Adventure Outdoor’s complaint could “reasonably be construed as an act in furtherance of the right to fee [sic] speech or the right to petition the government for redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern.” Finally, the court found that Adventure Outdoors had failed to submit the verification required by OCGA § 9-11- 11.1(b) even though this failure had been repeatedly called to its attention. Therefore, the trial court dismissed the action because of Adventure Outdoors’ failure to comply with the Anti-Slapp Statute. Adventure Outdoors contends the trial court erred by finding that citizens of another state were entitled to the protection of the Georgia Anti-Slapp Statute, and erred by finding that the New York defendants were arguably acting in furtherance of the right of free speech. Adventure Outdoors further contends the trial court erred by failing to consider whether the words used by the New York defendants App. 5 were said in good faith and met the “fair and honest” requirements of OCGA § 51-5-7(4), (6), defining privileged communications not subject to slander claims. We disagree and affirm the trial court. In May 2006, in what it termed an effort to curb the “serious problem of gun violence caused by the flow of illegal guns into the City,” the City filed suit in the Eastern District of New York against 15 gun dealers, including Adventure Outdoors, Inc. In its complaint the City alleged that the dealers created a dangerous public nuisance in the City by engaging in illegal sales practices that resulted in arming criminals there and sought injunctive relief to correct the problem. The New York defendants then held a press conference, the purpose of which was purportedly “to inform and educate the citizens of New York about the litigation, the nature of illegal gun trafficking, and the City’s efforts to address the problem.” The City’s press release listed the 15 gun dealers; according to Adventure Outdoors, at the press conference the Mayor, the Justice Coordinator, and the Chief of Police said that most of the illegal guns used to commit crimes in New York City were sold by “rogue gun dealers” who refused to obey federal laws, that the City caught them breaking Federal laws regulating gun sales, that they were “bad apples” who routinely ignore federal regulations, and that the dealers were reckless, careless, and “had blood on their hands.” The press conference was covered by print and electronic media and broadcast all over the country, including Georgia. App. 6

After the press conference, Adventure Outdoors filed this slander action, and after removal to Federal Court, remand to the trial court, two dismissals, and two refilings, the trial court granted the New York defendants’ motion to dismiss this third complaint due to Adventure Outdoors’ failure to file a Anti- SLAPP affidavit. The relevant sections of OCGA § 9-11-11.1 provide: (a) The General Assembly of Georgia finds and declares that it is in the public interest to encourage participation by the citizens of Georgia in matters of public significance through the exercise of their constitutional rights of freedom of speech and the right to petition government for redress of grievances. The General Assembly of Georgia further finds and declares that the valid exercise of the constitutional rights of freedom of speech and the right to petition government for a redress of grievances should not be chilled through abuse of the judicial process. (b) For any claim asserted against a person or entity arising from an act by that person or entity which could reasonably be construed as an act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Con- stitution of the State of Georgia in connection with an issue of public interest or concern, both the party asserting the claim App. 7

and the party’s attorney of record, if any, shall be required to file, contemporaneously with the pleading containing the claim, a written verification under oath as set forth in Code Section 9-10-113. Such written verification shall certify that the party and his or her attorney of record, if any, have read the claim; that to the best of their knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; that the act forming the basis for the claim is not a privileged communication under paragraph (4) of Code Section 51-5-7 [providing that statements made in good faith regarding issues of public concern as defined in 9-11-11.1 are not subject to libel or slander claims]; and that the claim is not interposed for any improper purpose such as to suppress a person’s or entity’s right of free speech or right to petition government, or to harass, or to cause unnecessary delay or needless increase in the cost of litigation. If the claim is not verified as required by this subsection, it shall be stricken unless it is verified within ten days after the omission is called to the attention of the party asserting the claim. . . . (e) Nothing in this Code section shall affect or preclude the right of any party to any recovery otherwise authorized by common law, statute, law, or rule. App. 8

1. Adventure Outdoors contends that in dismissing its complaint the trial court failed to properly assess the litigation’s merits under the Anti-SLAPP statute, because OCGA § 9-11-11.1(a) limits the statute’s protection only to citizens of Georgia. “The interpretation of a statute is a question of law, which is reviewed de novo on appeal.” Joe Ray Bonding Co. v. State of Ga., 284 Ga. App. 687, 688 (644 SE2d 501) (2007). The Supreme Court of Georgia has summa- rized the guidelines for statutory interpretation: In construing a statute, our goal is to determine its legislative purpose. In this regard, a court must first focus on the statute’s text. In order to discern the meaning of the words of a statute, the reader must look at the context in which the statute was written, remember- ing at all times that the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes. If the words of a statute, however, are plain and capable of having but one meaning, and do not produce any absurd, impractical, or contradictory results, then this Court is bound to follow the meaning of those words. If, on the other hand, the words of the statute are ambiguous, then this Court must construe the statute, keeping in mind the purpose of the statute and “the old law, the evil, and the remedy.” OCGA § 1-3-1(a). (Citations and punctuation omitted.) Busch v. State, 271 Ga. 591, 592 (523 SE2d 21) (1999). Further, a statute should be read according to the natural and App. 9 most obvious import of its language without resorting to subtle and forced constructions to limit or extend its operation. Burbridge v. Hensley, 194 Ga. App. 523, 524(1) (391 SE2d 5) (1990). One of the cardinal rules of statutory construction, however, requires the courts to “consider the consequences of any proposed interpretation and not construe the statute to reach an unreasonable result unintended by the legislature. [Cit.]” Trust Co. Bank v. Ga. Superior Court Clerks’ Cooperative Auth., 265 Ga. 390(1) (456 SE2d 571) (1995). Thus, the initial question is whether OCGA § 9- 11-11.1(a) (“it is in the public interest to encourage participation by the citizens of Georgia in matters of public significance”) encompasses a press conference held outside the territorial limits of Georgia by individuals who are not citizens of this State. Pretermit- ting whether language in subsection (a) is merely part of the preamble of the statute and thus could not limit “the plain meaning of the body of the act,” Bentley v. State Bd. of Medical Examiners, 152 Ga. 836, 839 (111 SE 379) (1922), we find that considering the text of the statute, the legislature’s purpose in enacting it, and the “evil” the Anti-SLAPP was designed to correct, the New York defendants are entitled to the protection of OCGA § 9-11-11.1. Although the General Assembly obviously intended to protect Georgia citizens in enacting the statute, nothing in OCGA § 9-11-11.1(a) limits the scope of the statute only to citizens of Georgia. Sub- section (a) merely states that it is in the public’s App. 10 interest to encourage Georgia citizens to participate in matters of public significance by exercising their rights to free speech and to petition the government. It contains no words of limitation, and, while designed to encourage participation by Georgia citizens, it does not state that citizens of other states cannot receive the benefits of the Anti-SLAPP statute if it otherwise applies. Moreover, subsection (b) of OCGA § 9-11-11.1 states that the statute applies to “a person or entity” being sued and contains no limitation on citizenship. The intent of the Anti-SLAPP statute is to encourage the exercise of constitutionally protected free speech. Denton v. Browns Mill Development Co., 275 Ga. 2, 6 (561 SE2d 431) (2002). Accordingly, we find that the trial court did not err by holding that the New York defendants were entitled to rely upon OCGA § 9-11-11.1. Although in Metzler v. Rowell, 248 Ga. App. 596, 597(1) (547 SE2d 311) (2001), this court stated that the Anti-SLAPP statute was “intended to protect Georgia citizens who participate in ‘matters of public significance through the exercise of their constitutional rights of freedom of speech and the right to petition government for redress of grievances’ from ‘abuse of the judicial process,’ ” that statement was not a holding in the case. Consequently, it is “not to be considered as having been so decided as to constitute precedents.” (Citation and punctuation omitted.) Gordy Tire Co. v. Dayton Rubber Co., 216 Ga. 83, 89 (114 SE2d 529) (1960). App. 11

3. Next, we must consider whether the press conference itself falls within the scope of OCGA § 9- 11-11.1(c): As used in this Code section, “act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern” includes any written or oral statement, writing, or petition made before or to a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, or any written or oral statement, writing, or petition made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law. (Emphasis supplied.) In measuring the breadth of conduct protected by the statute, we note that this Court has previously held that OCGA § 9-11-11.1 creates an “expansive definition” of protected speech, which includes “any statement made to any official proceeding authorized by law; or any statement made in connection with an issue under consideration by any official proceeding.” (Punctuation omitted; emphasis in original.) Metzler, 248 Ga. App. at 598(1). The anti-SLAPP statute operates to protect a person from lawsuits that are initiated in response to such protected statements. To prevent such abuse, the statute requires that any claim that could “reasonably be construed as App. 12 infringing upon these rights must be accompanied by a detailed verification and provides for a motion to dismiss and hearing on this issue. OCGA § 9-11-11.1 (b).” Id. at 597-598(1). As the press conference was held to address an issue under consideration by a judicial body, i.e., the lawsuit recently filed in Federal court in New York, Adventure Outdoors was required to file a verification under OCGA § 9-11-11.1(b). As Adventure Out- doors refused to file such a verification, the trial court did not err by dismissing its complaint. Hawks v. Hinely, 252 Ga. App. 510, 515(1)(c) (556 SE2d 547) (2001); Metzler, 248 Ga. App. at 598, 600. Adventure Outdoors argues that it was entitled to challenge whether the merit of the statements made during the press conference entitled the New York defendants to the protections of the Anti-SLAPP statute. In this case, however, the trial court was not required to consider the merit of the statements made by defendants because Adventure Outdoors and its attorney refused to file a verification certifying the merits of the claim. Absent such a verification, dismissal was proper. Judgment affirmed. Blackwell and Dillard, JJ., concur.

App. 13

IN THE SUPERIOR COURT OF COBB COUNTY STATE OF GEORGIA

ADVENTURE OUTDOORS, * INC.; JAY WALLACE, * a Georgia Resident; and * CECELIA WALLACE, * a Georgia Resident; * CIVIL ACTION NO. Plaintiffs, * 06-1-9667-18 * v. * MICHAEL BLOOMBERG, * A New York resident and * Mayor of the City of * New York; TANYA MARIE * NOONER, a Georgia resident; * MELISSA MERCED, * a Georgia resident; JOSEPH * TOUNSEL, a Georgia resi- * dent; THE NOONER INVES- * TIGATIVE GROUP a/k/a * Nooner Initiatives, Inc.; THE * JAMES MINTZ GROUP, and * JAMES MINTZ, Individually, * certain of its other Principals * and Agents, as yet unidenti- * fied; MICHAEL CARDOZO, * Corporation Counsel of * City of New York; JOHN * FEINBLATT, Criminal Justice * Coordinator of City of New * York; and RAYMOND KELLY, * a New York resident and *

App. 14

Chief Of New York City * Police Department; * * Defendants.

ORDER (Filed Sep. 30, 2009) An oral hearing in the above-styled action De- fendants’ Motion to Dismiss Complaint Based on Plaintiffs’ Failure to Comply with Anti-SLAPP Stat- ute [the “Motion”] was conducted June 15, 2009.

2. Plaintiffs initiated this action with the filing of a Complaint for Damages [the “Complaint”] on Novem- ber 21, 2006. The Complaint seeks redress for statements made by certain Defendants as they pertain to Adventure Outdoors, Inc [“Adventure Outdoors”], a vendor of firearms owned by defendants Jay and Cecelia Wallace.

3. Defendants move to dismiss the Complaint for Plaintiffs’ failure to comply with the Georgia Anti- SLAPP statute. O.C.G.A. § 9-11-11.1 provides that “for any claim asserted against a person or entity arising from an act by that person or entity which could reasonably be construed as an act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the App. 15

Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern, both the party asserting the claim and the party’s attorney of record, if any, shall be required to file, contemporaneously with the pleading containing the claim, a written verification” certifying “that the party and his or her attorney of record, if any, have read the claim; that to the best of their knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; that the act forming the basis for the claim is not a privileged communication under paragraph (4) of Code Section 51-5-7; and that the claim is not interposed for any improper purpose such as to suppress a person’s or entity’s right of free speech or right to petition government, or to harass, or to cause unnecessary delay or needless increase in the cost of litigation.”

4. The statute further provides that “if the claim is not verified as required by this subsection, it shall be stricken unless it is verified within ten days after the omission is called to the attention of the party asserting the claim.” § 9-11-11.1(b).

App. 16

5. Plaintiffs in this action were named as defendants, along with a number of other gun dealers, in a public nuisance action brought by New York City.

6. The Statements, as set forth in the Complaint and Plaintiffs’ First Amended Complaint, were made by officials in the context providing information to the public as to that action.

7. It appears to the Court that Defendants’ acts, alleged in each of Plaintiff ’s claims, could “reasonably be construed as an act in furtherance of the right to free speech or the right to petition the government for redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern”.

8. It further appears to the Court that Plaintiffs have failed to submit the verifications required by O.C.G.A. § 9-11-11.1(b) and that this omission has been called repeatedly to the attention of Plaintiffs and their counsel.

App. 17

9. Therefore, after considering argument of counsel, citation to authority and a review of the entire record Defendants’ Motion to Dismiss Complaint Based on Plaintiffs’ Failure to Comply with Anti-SLAPP Stat- ute is hereby GRANTED. SO ORDERED this 23rd day of September, 2009. /s/ George H. Kreeger George H. Kreeger, Judge Cobb Superior Court Cobb Judicial Circuit

[Certificate Of Service Omitted In Printing]

App. 18

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

ADVENTURE OUTDOORS, : INC., a Georgia Corporation, : et al., : Plaintiffs, : : v. : CIVIL ACTION NO. Michael BLOOMBERG, : 1:06-CV-2897-JOF Mayor of the City of New : York, in his capacity as : Mayor of New York City, : and individually, et al., : Defendants. :

OPINION AND ORDER (Filed Sep. 21, 2007) Until further notice, the court DIRECTS the Clerk of the Court to SEAL the court’s order of Sep- tember 20, 2007. In lieu thereof, the Clerk of the Court is DIRECTED to file the attached redacted version of the order. The Clerk of the Court is FUR- THER DIRECTED to SEAL Exhibits 5 through 10 filed in conjunction with Plaintiffs’ response to De- fendants’ Motion to Dismiss, Docket Entry 12.

App. 19

IT IS SO ORDERED this 21st day of September 2007. s/ J. Owen Forrester J. OWEN FORRESTER SENIOR UNITED STATES DISTRICT JUDGE

App. 20

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

REDACTED OPINION AND ORDER (Filed Sep. 21, 2007) This matter is before the court on Plaintiffs’ motion to remand [3-1]; Defendants’ motion for leave to file excess pages [6-1]; Defendants’ motion to dismiss [7-1] or in the alternative to transfer case to the United States District Court for the Eastern District of New York [7-2]; Plaintiffs’ renewed motion to remand [13-1]; Plaintiffs’ motion to amend complaint [14-1]; and Plaintiffs’ motion to amend complaint [18-1].

App. 21

I. Procedural History A. Background On May 15, 2006, The City of New York filed suit in the United States District Court for the Eastern District of New York against numerous gun brokers around the country, including Adventure Outdoors, Inc., located in Smyrna, Georgia. The City contends that the gun brokers knowingly permitted straw transactions to take place during gun purchases, a practice which violates federal law. In compiling evidence to file its complaint, the City hired numerous private investigators to pose as gun purchasers and go to various gun dealers around the country. The investigators would engage in behavior designed to simulate straw purchases to determine whether the gun broker would permit a sale under circumstances which purportedly mimic a straw purchase. Several gun brokers, including Adventure Outdoors, sold guns to the investigators hired by the City. The City alleges the gun dealer’s actions in these purchases constitute various forms of nuisance and negligence. The court will refer to this lawsuit as the “New York Action.” Adventure Outdoors and its owners Jay, Cecilia, and Eric Wallace, then filed suit in the Superior Court of Cobb County contending that various officials of New York City defamed them in a news conference called to announce the filing of the New York Action. Adventure Outdoors also claims that the City’s use of private investigators to simulate straw App. 22

purchases was negligent. Defendants to Adventure Outdoors’ complaint removed the suit to this court, and Adventure Outdoors filed the instant motion to remand. To sort through the jurisdictional issues raised in the parties’ briefings, the court finds it necessary to review in detail the opposing suits filed by the parties.

B. The New York Action In the New York Action, the City alleges that from March 1994 through October 2001, at least 21 guns sold by Adventure Outdoors were recovered in New York City in the hands of individuals prohibited from possessing a gun and involved in violent crimes. See New York Complaint, ¶ 6. The complaint further avers that from 1996 to 2000, a total of 254 guns sold by Adventure Outdoors were recovered in connection with crimes around the country. Id. The City contends that the guns sold by the defendants are recovered in the hands of prohibited persons in disproportionate numbers because each Defendant sells handguns in a manner that either intentionally violates federal law or is contrary to industry practice or otherwise and therefore negligent. Specifically, upon information and belief, Defendants intentionally or negligently sell handguns to prohibited persons through “strawman” purchases, in which an individually [sic] legally able to buy a handgun purchases the gun from a licensed gun dealer, intending to App. 23

transfer it immediately to a prohibited person. Id., ¶ 21. With respect to Adventure Outdoors, the complaint states that on April 8, 2006, a male and female investigator retained by the City of New York went to the store and engaged in a “simulated straw purchase that displayed all of the observable, in-store charac- teristics of the straw purchases described above [ ], without any subsequent transfer of the gun to the ‘straw purchaser.’ ” Id., ¶ 91. Only the male investigator interacted with an Adventure Outdoors sales person in discussing and selecting a Glock 9mm handgun to purchase. Once the male investigator had the gun and indicated a desire to purchase it, the female investigator, who had not been a part of the discussion, was summoned to the counter to make the purchase. Id. The female investigator filled out the paperwork. Id., ¶ 92. “When the male investigator attempted to pay for the gun, the salesperson said that the male investigator needed to initial the form because he was paying for the gun. The male investigator initialed the form, the salesperson performed the background check, and the transaction was completed.” Id.1 The

1 The court notes that Defendants provided a slightly different account of the transaction in their motion to dismiss. See Motion, at 7 n.7 (indicating that only the male investigator interacted with the salesperson and handled the gun, “[b]ut when (Continued on following page) App. 24

City contends that “Adventure Outdoors’ participation in the simulated straw sale violates Sections 922, 923, 924 and 1001 of Title 18 of the U.S. Code and that violation is a proximate cause of the City’s injury.” Id., ¶ 94. The City of New York raises causes of action of public nuisance, statutory nuisance, negligence per se, negligence, and negligent entrustment. It seeks an injunction ordering inter alia “each Defendant to comply with federal, state and local laws related to the sale of guns, including ceasing to engage in straw sales.” Id. at 77. On the day the lawsuit was filed, the City of New York held a press conference announcing the suit and discussing actions of the gun dealers.

C. The Georgia Action Thereafter, Plaintiffs, Adventure Outdoors, Inc., Jay Wallace, and Cecilia Wallace, filed a lawsuit in the Superior Court of Cobb County against Defend- ants, New York City; Michael Bloomberg, the Mayor of New York City; Michael A. Cardozo, Corporation Counsel of the City of New York; Raymond Kelly, Chief of Police of the New York Police Department; and John Feinblatt, Criminal Justice Coordinator of

the clerk asked Mr. Tounsel to fill out the federal paperwork, Ms. Nooner was – for the first time – brought into the transaction, and only she provided the identification and information on the ATF Form 4473. Mr. Tounsel then paid for the gun and the store clerk handed him the receipt.”). App. 25

New York City. The court will refer to these Defen- dants as the New York City Defendants.2 Plain- tiffs also sued the various private investigators used by New York City to simulate the straw purchases, specifically, the Nooner Investigative Group; Tanya Marie Nooner,3 a Georgia resident and principal of Nooner Investigative Group; Melissa Merced, of Nooner In- vestigative Group; Joseph Tounsel, of Nooner Investi- gative Group; James Mintz, principal of The James Mintz Group; and The James Mintz Group. The court will refer to these Defendants as the Investigator Defendants.

2 Plaintiffs first filed suit in state court on July 20, 2006. Defendants removed the suit to this court on August 18, 2006. After amending their complaint once, Plaintiffs then voluntarily dismissed that action in response to Defendants’ assertion that federal question jurisdiction existed so as to preclude remand. See Adventure Outdoors, Inc. et al. v. Bloomberg, et al. Civil Action No. 06-CV-1931-JOF. Several months later, Plaintiff filed the instant complaint, again in the Superior Court of Cobb County. Defendants removed the complaint to this court on No- vember 29, 2006. 3 During the pendency of this action, Ms. Nooner died. Plaintiffs filed a motion to amend complaint pursuant to Federal Rule of Civil Procedure 15(a) to add the Estate of Tanya Marie Nooner as a party. Defendants responded that the proper procedure was to move for substitution pursuant to Rule 25(a)(1). Plaintiffs then filed a motion to amend and substitute. The court GRANTS Plaintiffs’ motion to amend complaint [18-1] to substitute the Estate of Tanya Marie Nooner in place of Tanya Marie Nooner. The court DENIES AS MOOT Plaintiffs’ first motion to amend complaint [14-1]. App. 26

Plaintiffs assert that Defendants Nooner, Tounsel, and perhaps Merced, entered Adventure Outdoors on April 8, 2006 in order to falsely and fraudulently purchase a firearm. See Cmplt., ¶¶ 14-15. Plaintiffs contend that Defendants lied orally and on the written purchase form “to induce agents of Plaintiffs’ business to sell” the firearm. Id., ¶ 15. Plaintiffs asserts [sic] that the New York City Defendants met and directed Defendants Nooner, Tounsel, and Merced to go into Adventure Outdoors to commit fraud. Id., ¶ 16. Plaintiffs also assert that the New York Defen- dants maliciously libeled and slandered Plaintiffs “by dissemination of statements to, among others, the news media, both print and electronic; and both national and local, which the New York Defendants knew, or by the exercise of minimal due diligence would have known, were untrue.” Id., ¶ 20. This included characterizing Plaintiffs as “rogue gun dealers.” Id., ¶ 21. Count One of Plaintiffs’ complaint for libel and slander sets forth specific statements made by De- fendants Bloomberg, Cardozo, Feinblatt, and Kelly on May 15 and 21, 2006, including “these dealers are the worst of the worst,” “a scourge on our society,” “group of bad apples who routinely ignore federal regulations,” and “[p]lain and simple these dealers have New Yorkers[ ] blood on their Hands.” Id., ¶ 27. Counts Two and Three of Plaintiffs’ complaint are for gross negligence and negligence, respectively, for App. 27

failing to (a) investigate whether the 21 guns referenced in the New York Action were negligently or unlawfully sold, (b) contact the Special Agent in Charge of the Atlanta ATF to determine “the truth and legality” of Plaintiffs’ business, (c) inquire of Plaintiffs what firearms’ sale safeguards were in place at the business, and (d) to “debrief ” Defendant Nooner as to why she was asked to initial the “strawman” purchase paragraph on April 8, 2006. Id., ¶ 31. Count Four asserts a claim of aiding and abetting. Count Five raises special violations against Defendant Bloomberg based on his meeting with Atlanta Mayor Shirley Franklin “to present and persist in presenting egregious slander against the Georgia Plaintiffs.” Id., ¶¶ 36-38. Plaintiffs also assert a claim of tortious interference with business relations. Id., ¶ 39.

D. Contentions Defendants argue that a substantial question of federal law exists in the case because the court must determine whether the gun brokers’ sales violated federal law prohibiting straw purchases of guns in order to adjudicate Plaintiffs’ negligence and defamation claims. In the alternative, Defendants argue that the court should dismiss Plaintiffs’ complaint because certain Plaintiffs do not have standing; the court does not have personal jurisdiction over Defendants; Plaintiffs did not properly file ante litem notices; and Plaintiffs’ claims for libel, slander, negligence, and App. 28 tortious interference fail as a matter of law. Finally, Defendants argue that the court should transfer the case to the United States District Court for the Eastern District of New York under the “first-filed” rule. Plaintiffs respond that there is no substantial question of federal law inherent in their state law claims such that those claims could “arise under” federal law. Plaintiffs assert that their causes of action rest on misrepresentations made to Plaintiffs’ employees which induced those employees to sell a gun to the investigators. As such, Plaintiffs contend, the issue of federal law and regulation of “straw purchases” and the completion of an ATF form is not substantial enough to open the door to federal litigation.

II. Discussion A. Motion to Remand On a motion to remand, the party that removed the action to federal court bears the burden of proving the existence of federal jurisdiction. See Leonard v. Enterprise Rent A Car, 279 F.3d 967, 972 (11th Cir. 2002). All doubts with respect to federal jurisdiction should be resolved against removal and in favor of remand to state court. See Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir. 1996). Defendants state that the complaint may be removed pursuant to 28 U.S.C. § 1441(c) which allows App. 29

for removal because “[w]henever a separate and inde- pendent claim or cause of action within the jurisdiction conferred by section 1331 . . . is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein. . . .” Id. Section 1331 provides that “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” Id. “Although the vast majority of cases that fall within such federal-question jurisdiction are cases that arise under federal law that creates a cause of action, in limited circumstances, federal-question jurisdiction may also be available if a substantial, disputed question of federal law is a necessary element of a state cause of action.” Jairath v. Dyer, 154 F.3d 1280, 1282 (11th Cir. 1998) (citing Merrell Dow 1265 Pharm. Inc. v. Thompson, 478 U.S. 804, 808 (1986)). In Jairath, the plaintiff alleged a state law cause of action based on a breach of duty created by the Americans with Disabilities Act. The Eleventh Circuit applied Merrell Dow and found that plaintiff ’s claims did not arise under federal law because there was no private right of action for damages under the ADA. Id. at 1282. In Merrell Dow, the plaintiff alleged that the defendant drug company was negligent, and that its violation of the Federal Food, Drug and Cosmetic Act constituted a rebuttable presumption of negligence. The Court noted the fact that a federal question was App. 30 an element of a state law cause of action did not “automatically confer federal-question jurisdiction.” 478 U.S. at 813. The Court found significant that the Food, Drug and Cosmetic Act itself did not create a private remedy for a violation of branding requirements. Ultimately, the Court held: We conclude that a complaint alleging a violation of a federal statute as an element of a state cause of action, when Congress has determined that there should be no private, federal cause of action for the violation, does not state a claim “arising under the Con- stitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Id. at 817. This is true even where the violation of the statute is a necessary element of a state law cause of action. See id. at 813-14. But compare Ayres v. Gen- eral Motors Corp., 234 F.3d 514 (11th Cir. 2000) (federal jurisdiction where resolution of suit depended only on interpretation of federal mail fraud statutes in conjunction with the Federal Motor Vehicle Safety Act). In Ayres, the plaintiff alleged that General Motors had violated the Vehicle Safety Act and by doing so had committed federal mail and wire fraud. The court found that establishing the violation of the federal mail and wire fraud statutes would be an essential element of the plaintiff ’s claims. The court held that federal jurisdiction was proper because “plaintiff ’s cause of action has as an essential element the existence of a right under federal law which will be supported by a construction of federal law App. 31 concluding that the federal crime is established, but defeated by another construction concluding the opposite.” Id. at 519. The Supreme Court again addressed the issue of jurisdiction when a state law claim poses a substantial question of federal law in Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufactur- ing, 545 U.S. 308 (2005). There, the Internal Revenue Service seized real property owned by Grable to satisfy a federal tax delinquency and gave Grable noticed [sic] by certified mail before selling the property to Darue. Id. at 311. Grable did not take any action at that time, and the IRS gave Darue a quitclaim deed to the property. Five years later, Grable filed a quiet title action in state court asserting that Darue’s record title was invalid because the IRS failed to notify Grable of its seizure in the manner specified in 26 U.S.C. § 6335(a). Darue removed the suit to federal district court under federal question jurisdiction “because the claim of title depended on the interpretation of the notice statute in the federal tax law.” Id. Ultimately, the Supreme Court granted certiorari on the jurisdiction question “to resolve a split within the Courts of Appeals on whether Merrell Dow [] always requires a federal cause of action as a condition for exercising federal-question jurisdiction.” Id. at 311-12. The Court reviewed the history of “arising under” jurisdiction that had been recognized in Merrell Dow (and other cases for nearly 100 years) such that “federal question jurisdiction will lie over state-law claims that implicate significant federal App. 32

issues.” Id. at 312. The Court noted that the doctrine had been subject to “some trimming” and that it had “become a constant refrain in such cases that federal jurisdiction demands not only a contested federal issue, but a substantial one, indicating serious federal interest in claiming the advantages thought to be inherent in a federal forum.” Id. at 313. Further, “the federal issue will ultimately qualify for a federal forum only if federal jurisdiction is consistent with congressional judgment about the sound division of labor between state and federal courts governing the application of § 1331.” Id. at 313-14. The Court found that Grable’s entire claim rested on whether he was given proper notice within the federal statute and that the meaning of that statute was in dispute and “appeared to be the only legal or factual issue contested in the case.” Id. at 315. “The meaning of the federal tax provision is an important issue of federal law that sensibly belongs in a federal court.” Id. The Court ultimately held that “the national interest in providing a federal forum for federal tax litigation is sufficiently substantial to support the exercise of federal question jurisdiction over the disputed issue on removal, which would not distort any division of labor between the state and federal courts, provided or assumed by Congress.” Id. at 310. The Court noted that Merrell Dow was not to the contrary. Although Merrell Dow considered the fact that Congress had not provided a federal cause of action for violating the federal branding requirement at issue in the plaintiffs’ negligence action, the Grable App. 33

Court concluded that this statement in Merrell Dow did not render a federal cause of action a necessary condition of federal question jurisdiction. Id. at 317. Thus, Merrell Dow “should be read in its entirety as treating the absence of a federal private right of action as evidence relevant to, but not dispositive of, the ‘sensitive judgments about congressional intent’ that § 1331 requires.” Id. at 318 (noting the significance of both the absence of a private right of action and the lack of preemption of state remedies). Signifi- cantly, the Court pointed out that the “violation of federal statutes and regulations is commonly given negligence per se effect in state tort proceedings,” and thus, the Court in Merrell Dow was reluctant to allow federal jurisdiction over state law claims resting on federal statutory violations because this would have shifted too many cases from state courts to federal courts. Id. at 318-19 (quotation and citation omitted). In contrast, “it is the rare state quiet title action that involves contested issues of federal law,” so jurisdiction over Grable’s action would not “materially affect, or threaten to affect, the normal currents of litigation.” Id. at 319. Here, to adjudicate Plaintiffs’ causes of action, a court would have to consider the “straw purchase” scenario from two perspectives. First, with respect to the libel and slander claims, because truth is a defense to such accusations, the court would have to determine whether Adventure Outdoors actually was complicit in a straw purchase. There appears to be no dispute that federal liability for straw purchases App. 34 arises out of interactive readings inter alia of 18 U.S.C. § 922(a)(6), which prohibits the making of false statements in the process of the sale of firearms, 18 U.S.C. § 924(a)(1)(A), and 18 U.S.C. § 1001, which prohibits making false statements on documents, in this case ATF Form 4473. See generally United States v. Inglese, 282 F.3d 528 (7th Cir. 2002) (describing federal prosecution of employees of gun shop for participation in straw purchase gun sales); United States v. Nelson, 221 F.3d 1206 (11th Cir. 2000) (prosecution of individuals who solicited others to make straw purchases on their behalf and noting that where individuals “supplied money for these purchases, intended to possess the firearms, and thus actually bought these firearms”); ATF Form 4473 (transferor certification at 31-34 that “it is my belief that it is not unlawful for me to sell, deliver, transport, or otherwise dispose of the firearm(a) listed on this form to the person identified in Section A”). Thus, questions of federal law are certainly present with respect to Adventure Outdoors’ actions. (The court notes, however, that the paucity of factual allegations present in the New York complaint (¶¶ 91-94) would make that a difficult question to answer at this point in the litigation.) Second, with respect to the negligence-related causes of action, the court would have to consider whether the private investigators, themselves, violated federal law by simulating a straw purchase. This aspect of Plaintiffs’ case appears to be less clear- cut, and at this point, the court has located no case App. 35

law to guide its consideration of the matter other than those noted above. The court recognizes that the federal firearms scheme does not allow for a private right of action. As Grable notes, however, this is merely a factor to consider in the “arising under” analysis and is not dispositive itself. The court’s investigation of the law surrounding straw purchases under these circumstances convinces the court that this is an “important issue of federal law that sensibly belongs in a federal court” as the Supreme Court found the federal tax question in Grable. Further, as in Ayres, where the Eleventh Circuit held federal jurisdiction was appropriate because of a substantial question of federal law, establishing a violation of the federal firearms and other regulations – either by the investigators or by Adventure Outdoors – will be an essential element of numerous of Plaintiffs’ causes of action. Thus, federal jurisdiction is proper because “plaintiff ’s cause of action has as an essential element the existence of a right under federal law which will be supported by a construction of federal law concluding that the federal crime is established, but defeated by another construction concluding the opposite.” 234 F.3d at 519. For the foregoing reasons, the court DENIES Plaintiffs’ motion to remand.

B. Motion to Dismiss Defendants raise a plethora of arguments in their motion to dismiss, both in terms of jurisdiction App. 36

and failure to state a claim. In their response, Plain- tiffs address some of these arguments but not others. Plaintiffs appear to focus on the narrative facts of their complaint, and the court is not unsympathetic to this view. As the court indicated above, it is not clear that it is legally proper under federal law for private investigators to enter gun shops to pose as straw purchasers in an attempt to induce a sale.4 However, the court must focus its attention and detail on the legal issues raised by Defendants in their motion to dismiss. For the purposes of clarity, for instance, the court notes that despite Plaintiffs’ re- peated references to “fraud” in their response to De- fendants’ motion to dismiss, Plaintiffs do not appear to have raised a claim of “fraud” in their complaint. The court further notes that in its response to Defendants’ motion to dismiss, Plaintiffs vigorously assert that they are suing the New York Defendants

4 These concerns are addressed in the letter of February 6, 2007, written by Michael Battle, Director of the Executive Office for United States Attorneys, United States Department of Justice, to John Feinblatt, Criminal Justice Coordinator for the City of New York. Mr. Battle stated: “Although a decision has been made not to move forward with case filings in these matters, you should be aware that there are potential legal liabil- ities that may attach when persons outside of law enforcement undertake actions typically reserved for law enforcement agents. This risk is particularly acute when such persons, however well- intentioned, but without proper law enforcement authority, mis- represent that they are the actual purchasers of the firearms when, in fact, the purchases are being made on behalf of another person or entity (for instance, on behalf of the City).” App. 37 in their individual capacities. See Plaintiffs’ Response to Defendants’ Motion to Dismiss, at 19 (Section G: “The Defendants are not being sued as officials, but as officials who went far beyond their legitimate roles in New York City and who committed fraud in Georgia and elsewhere and who broke the law as individuals, and New York City cannot ratify the illegal acts of its officials and employees.”). “The New York Defendants directed the Georgia Defendants in illegal conduct, and this too will be proven in discovery and trial. The consequence is that the New York Defen- dants are being sued for their ultra vires conduct as individuals.” Id. at 20. Because Plaintiffs have clari- fied that they are not suing the municipality of New York, the court will not consider Defendants’ argument that Plaintiffs failed to make the proper ante litem notices.

1. Service of Process In their motion to dismiss, the New York Defen- dants argue that Plaintiffs have not properly served them with the complaint. Plaintiffs’ complaint was removed before any Defendant was served with process. Thus, under 28 U.S.C. § 1448, the service of process rules of the Federal Rules of Civil Procedure apply. Federal Rule of Civil Procedure 4(e) provides that service may be effected “pursuant to the law of the state in which the district court is located, or in which service is effected, for the service of a summons upon the defendant in an action brought in the courts of general jurisdiction of the State” or App. 38

by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion . . . or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process. Id. Plaintiffs, therefore, can perfect service as permitted under Rule 4(e) or either Georgia or New York law. Under Georgia law, service of a defendant individually, absent special circumstances, is made to the defendant personally, or by leaving copies thereof at the defendant’s dwelling house or usual place of abode with some person of suitable age and discretion then resid- ing therein, or by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process. See O.C.G.A. § 9-11-4(e)(7). Under New York law, service may be made to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by a subsequent mailing of the summons and complaint. See N.Y. McKinney’s C.P.L.R. 308, subd. 2. Here, the first attempted service on Defendant James Mintz occurred on December 1, 2006, at his App. 39

“most notorious place of business,” 32 Avenue of the Americas, 21st Floor, New York, NY 10013, by delivering a copy of the summons and complaint to Andrew B. Melnick (General Counsel). The same day, Defendants Michael Bloomberg, John Feinblatt, and Michael Cardozo, were served with the complaint by delivery to Celeste Spiridigliozzi, Assistant Unit Chief, at 100 Church Street, Fourth Floor, New York, NY. Defendant Raymond Kelly was served by delivering a copy of the summons and complaint to Evan Gluck, Agency Attorney, at the New York City Police Department, 1 Police Plaza #1408, New York, NY 10038. At this point, Defendants filed their motion to dismiss citing problems with Plaintiffs’ service of process. Plaintiffs then went through an additional round of attempted service. Service on Michael Bloomberg was attempted on February 8, 2007 at City Hall at 12:20 p.m. Police Officer Alfonzo at the gate refused the server admission and instructed him to serve corporation counsel. Service was attempted at Mr. Bloomberg’s residence at [REDACTED] at 3:47 p.m. There, Lieutenant Dowd informed the server that he must serve corporation counsel. The server indicated he wanted to serve Mr. Bloomberg individually. Sergeant Gallogry appeared and informed the server he would need to serve corporation counsel and that they were waiting for the server to arrive there. The server then delivered the complaint and summons to Madelyn Santana at the City of New York’s Corporation Counsel. The server also App. 40 mailed a copy of the complaint and summons to Mr. Bloomberg, care of the Office of the Mayor of New York City, New York City Hall, City Hall Park, New York, NY 10007, and to his residence at [RE- DACTED]. Similarly, with respect to John Feinblatt, the server attempted to serve at City Hall at 12:20 p.m. Police Officer Alfonzo at the gate refused the server admission and instructed him to serve corporation counsel. Service was attempted at Mr. Feinblatt’s residence at [REDACTED] at 5:17 p.m. A copy of the summons and complaint was left with Marina Williams, a housekeeper/babysitter. The server then delivered the complaint and summons to Madelyn Santana at the City of New York’s Corporation Coun- sel. The server also mailed a copy of the complaint and summons to Mr. Feinblatt care of the Office of the Mayor of New York City, New York City Hall, City Hall Park, New York, NY 10007, and to his residence. For Michael Cardozo, on February 8, 2007, the server delivered the complaint and summons to Madelyn Santana at the City of New York’s Corpora- tion Counsel at 100 Church Street, Fourth Floor, New York, NY. The same day a different process server went to Mr. Cardozo’s residence at [REDACTED] and gave a copy of the complaint and summons to Nancy Cardozo, Mr. Cardozo’s wife. A copy of the complaint and summons was also mailed to Mr. Cardozo at his work and residence addresses. App. 41

On February 8, 2007, the server delivered a copy of the complaint and summons to Raymond Kelly, at the New York City Police Department, care of David Goldfarb, a police department attorney. Service was also mailed to Raymond Kelly at 1 Police Plaza, #1408, New York, NY 10038. For James Mintz, on February 8, 2007, the server delivered a copy of the summons and complaint at [REDACTED] to Richard Rivas, a concierge in the lobby. Service was also mailed to that address. The server also served Andrew Melnick, General Counsel, at The James Mintz Group, 32 Avenue of the Ameri- cas, 21st Floor, New York, NY 10013. A copy was also mailed to this business address. Service to Defendant James Mintz Group was made through its managing agent, Andrew Melnick, at 32 Avenue of the Americas, 21st Floor, New York, NY 10013, and mailed there as well. The plaintiff bears the burden of establishing proof of service of process. See Ritts v. Dealers Alli- ance Credit Corp., 989 F. Supp. 1475 (N.D. Ga. 1997) (Forrester, J.). Defendant Kelly was properly served under New York law because the summons and service was left with David Goldfarb at Kelly’s actual place of business, and there is no contention that Mr. Goldfarb, an attorney in the Police Department, is not a person of suitable age and discretion, and a copy of the complaint and summons was also immediately mailed to Defendant Kelly at his actual place of business. Defendant Cardozo was properly served under New York law because a copy of the complaint App. 42 and summons was left with his wife at his residence, and a copy of both was immediately mailed to De- fendant Cardozo at his residence. Defendant Mintz was properly served under New York law because a copy of the summons and complaint was left with Andrew Melnick, managing agent of Defendant Mintz’s business, and there is no contention that Mr. Melnick is not a person of suitable age and discretion. Further, a copy of both was immediately mailed to Defendant Mintz at his business address. Defendant Feinblatt was properly served under New York law because a copy of the complaint and summons was left at his residence with the housekeeper/babysitter, and there is no contention that this individual was not of suitable age and discretion. (The court notes that New York law, for example, permits the service of summons upon a doorman or concierge when that person does not permit access to the actual residence of the person to be served.) A copy of the complaint and summons was then immediately mailed to Defendant Feinblatt at his residence. With regard to Defendant Bloomberg, the process server was specifically instructed at both his residence and at City Hall to take the summons and complaint to the Corporation Counsel who was waiting for him because security personnel at City Hall and the residence would not permit the process server to personally serve Defendant Bloomberg. There, Madelyn Santana, an employee of the Corporation Counsel, was waiting for the process server and App. 43 accepted the documents. A copy was then immediately mailed to Defendant Bloomberg at both the City Hall address and the residence. To the extent De- fendants would continue to argue that attempts of service at his residence, at City Hall, and at the Corporation Counsel, as well as mailing to all of the above, were insufficient, the court would certainly consider the instructions given to the process server in determining whether sufficient service was made under circumstances of potential frustration or re- sistance. In sum, the court finds that Plaintiffs have properly served all New York Defendants, as well as James Mintz and The James Mintz Group.

2. Personal Jurisdiction The New York Defendants argue that the court does not have jurisdiction over them in their individual capacities because they have had no contacts with Georgia, and any contacts in their official capacity cannot be the basis for jurisdiction. When an evidentiary hearing is not held, the plaintiff must establish a prima facie case of personal jurisdiction over a nonrresident defendant. A prima facie case is established if the plaintiff presents enough evidence to withstand a motion for directed verdict. The district court must accept the facts alleged in the complaint as true, to the extent they are uncontroverted by the defendant’s affidavits. Finally, where the plaintiff ’s complaint and App. 44

the defendant’s affidavits conflict, the district court must construe all reasonable in- ferences in favor of the plaintiff. Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253, 255 (11th Cir. 1996). A federal court must have both statutory and constitutional authority to assert jurisdiction over a defendant. See McGee v. International Life Ins. Co., 355 U.S. 220 (1957). In analyzing personal jurisdiction, the court must first determine whether a defendant is subject to jurisdiction under Georgia’s long arm statute. If so, the court must then determine if an assertion of jurisdiction would be constitutional. See Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990). The Georgia Long Arm statute permits a Georgia court to exercise personal jurisdiction over a nonresident if he “[t]ransacts any business within this state.” See O.C.G.A. § 9-10-91(1). The statute also permits the exercise of jurisdiction if the nonresident “[c]ommits a tortious act or omission within this state, except as to a cause of action for defamation of character arising from the act.” See id., § 9-10-91(2). The statute goes on to state the jurisdiction may also be had over a nonresident who “[c]ommits a tortious injury in this state caused by an act or omission outside this state, if the tortfeasor regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from App. 45

goods used or consumed or services rendered in this state.” Id., § 9-10-91(3). Subsection (2) of the Georgia Long Arm statute has been interpreted as “unequivocal and unambiguous in mandating the exclusion of an action predicted on defamation.” See, e.g., Worthy v. Eller, 265 Ga. App. 487 (2004); Balmer v. Elan Corp., 261 Ga. App. 543, 546 (2003); Cassells v. Bradlee Management Services, 161 Ga. App. 325, 327 (1982). Thus, at least with respect to their defamation claims, Plaintiffs cannot gain jurisdiction over Defendants via subsection (2). Courts, however, have also considered whether a defamation claim can be pursued through subsection (3) of the Long Arm statute. See Bradlee Management Services, Inc. v. Cassells, 249 Ga. 614 (1982). Under that subsection, however, there would need to be minimum contacts with Georgia apart from the contacts arising from the acts of alleged defamation. Here, there is no evidence that any of Defendants have regularly solicited business or engaged in any persistent course of conduct in the state which would constitute “minimum contacts” for the purposes of the “general” jurisdiction described in subsection (3). To determine whether the court has jurisdiction over the New York Defendants pursuant to subsection (1) of the Long Arm statute requires a more lengthy analysis. Prior to 2005, Georgia courts had interpreted subsection (1) with certain limitations, such as applying only to contract cases or requiring the physical presence of the defendant in Georgia. How- ever, in Innovative Clinical & Consulting Services, App. 46

LLC v. First National Bank of Ames, 279 Ga. 672 (2005), the Supreme Court of Georgia held that this section of the Long Arm Statute contained no explicit limiting conditions and “a literal construction grants Georgia courts the unlimited authority to exercise personal jurisdiction over a nonresident who trans- acts any business in this State.” Id. at 675 (to the extent permitted by due process). “We hereby over- rule all prior cases that fail to accord the appropriate breadth to the construction of the ‘transacting any business’ language of O.C.G.A. § 9-10-91(1).” Id. at 676. Since the Supreme Court’s decision in Innovative Clinical, Georgia courts have explained that “[j]uris- diction exists on the basis of transacting business in this state if (1) the nonresident defendant has purposefully done some act or consummated some transaction in this state, (2) if the cause of action arises from or is connected with such act or transaction, and (3) if the exercise of jurisdiction by the courts of this state does not offend traditional fairness and substantial justice.” See Aero Toy Store, LLC v. Grieves, 279 Ga. App. 515, 518 (2006). This analysis, of course, is similar to that minimum contacts and fairness analysis required under the Due Process Clause of the United States Constitution. Here, the theory of Plaintiffs’ complaint – as explicitly expressed in the complaint itself – is that the New York Defendants got together and conceived a plan whereby they would hire private investigators to enter gun shops in Georgia, including Adventure App. 47

Outdoors, and pose as persons undertaking a straw purchase to determine whether the gun shop would permit the purchase to go through. The New York Defendants call this promoting public safety; Plain- tiffs call it a conspiracy. In terms of personal jurisdiction, the result is the same. Under the allegations in the complaint, the New York Defendants planned for and instructed individuals to enter establishments in the state of Georgia and purchase firearms. This is the consummation of a transaction in Georgia, and that transaction is the basis for Plaintiffs’ claims. The New York Defendants are not insulated from jurisdiction in Georgia simply because they concocted their plan within the five boroughs. Georgia law is clear on this point. See Rudo v. Stubbs, 221 Ga. App. 702, 704 (1996) (“When the purpose of a conspiracy is to commit an intentional tort against Georgia, all of the coconspirators are purposefully directing their activities toward Georgia and should reasonably anticipate being haled into court here.”).5 Under the allegations raised in the complaint, the New York Defendants hired and directed the activities of the private investigators in Georgia. Therefore, the harm alleged by Plaintiffs is not only any actions taken by the New York Defendants but their direction of acts of the private investigators in the state of Georgia.

5 Plaintiffs do not allege a separate count of “conspiracy” in their complaint, but rather use it as the basis for personal jurisdiction. Therefore, the court need not address Defendants’ argument that Plaintiffs failed to allege an underlying tort in association with “conspiracy.” App. 48

The court disagrees with Defendants’ assertion that Plaintiffs have not sufficiently alleged a conspiracy and only provide “conclusory allegations” of the non-residents’ participation. Plaintiffs’ complaint sets forth the nature of the conspiracy. Cf. Sky Shots Aerial Photography, Inc. v. Franks, 250 Ga. App. 411 (2001) (finding no jurisdiction where there was no allegation that nonresident had any connection to fraudulent acts of resident defendant). Additionally, the court finds it more than a bit ironic that Defen- dants would attempt to deny that they were involved in planning to send private investigators into various gun establishments in the state of Georgia. A significant portion of the factual support for the New York lawsuit is garnered from the results of these “sting” operations. The court is fairly confident in concluding that the New York Defendants are not disavowing any association with those operations in their lawsuit in the Eastern District of New York. The New York Defendants also allege that they are not subject to jurisdiction in the state of Georgia because the acts complained of were conducted in their official capacities. Defendants cite Club Car, Inc. v. Club Car (Quebec) Import, Inc., 362 F.3d 775 (11th Cir. 2004), for this proposition.6 Club Car, however,

6 Defendants also cite to Cawley v. Bloch, 544 F. Supp. 133, 135 (D. Md. 1982), for the concept that corporate officers have a “fiduciary shield” with respect to jurisdiction when undertaking acts on behalf of the corporation. Leaving aside for a moment whether this shield would equally apply to elected officials, the court notes that Georgia law holds that the fiduciary shield does (Continued on following page) App. 49 stands for the proposition that a corporate officer cannot be haled into a foreign forum simply because he is the president of a corporation that may have done business in the forum. Rather, there must be a determination that the corporate officer, himself, took acts, such as negotiating a contract or “enjoying substantial financial benefit” from a contract. Here, the New York Defendants are not being sued simply because they have executive positions, in the government of the City of New York, but rather because they are alleged to be the actual persons who directed the activities of the private investigators in Georgia. Thus, the court finds that the New York Defen- dants purposefully directed acts in the forum state and that Plaintiffs’ causes of action of negligence and defamation arise out of the acts of the investigators’ “sting” operations, satisfying the first two elements of the “transacting business in the state” test of O.C.G.A. § 9-10-91(1). For the final factor of that test, the court turns to a due process analysis, as under federal constitutional law. The court considers two factors when determining whether asserting personal jurisdiction over nonresident defendants would comport with due process. First, the court must decide whether the defendant has “minimum contacts” with the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-74 (1985). not apply to tort allegations. See, e.g., Mitchell v. The Gilwil Group, Inc., 261 Ga. App. 882, 884-85 (2003). App. 50

To satisfy minimum contacts for the purposes of specific jurisdiction, the contacts must (1) be related to plaintiff’s cause of action; (2) involve some act of “purposeful availment” by the defendant of the privileges of the forum; and (3) be such that the defendant should reasonably anticipate being “haled into court there.” Francosteel Corp., 19 F.3d at 627. If the court finds sufficient minimum contacts, it must then determine whether the exercise of personal jurisdiction would offend the “traditional conception of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 320 (1945). As the court finds above, the New York Defen- dants engaged in sufficient contacts with respect to the sting operations such that they purposefully availed themselves of the forum state. Further, the court finds that the New York Defendants should have reasonably anticipated being haled into court here. According to the allegations raised in the complaint, the New York Defendants purposefully decided to send the private investigators in to Georgia to attempt to purchase firearms from gun shops in Georgia. The New York Defendants did not merely instruct the private investigators generally to try to find locations where the guns were originating. They specifically told the private investigators to go into the Adventure Outdoors shop, as well as several others, in Georgia. Plaintiffs allege that what the private investigators did in Georgia constitutes a tort. Under these circumstances, the court finds no due App. 51

process concern which would caution against jurisdiction. In determining the “fairness and reasonableness of a forum’s exercise of jurisdiction, a court must consider, among other things, the burden on the defendant, the interests of the forum . . . , and the plaintiff’s interest in obtaining relief.” Vermeulen v. Renault, U.S.A., Inc., 985 F.2d 1534, 1551 (11th Cir. 1993) (internal quotations and citations omitted). Although there may be some burden in asking a defendant to litigate this case in a foreign state, the Eleventh Circuit has noted that “modern methods of transportation and communication” have greatly re- duced such burdens. Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 632 (11th Cir. 1996). Further, Georgia does indeed have an interest in adjudicating disputes involving Georgia corporations. As such, the court does not find that this is one of those rare cases in which the concepts of “fair play” and “substantial justice” would defeat the reasonableness of jurisdiction. Having determined that the court has jurisdiction over all Defendants, the court now turns to Defendants’ motion to dismiss the various claims in Plaintiffs’ complaint.

3. Gross Negligence and Negligence In their complaint, Plaintiffs allege that Defen- dants did not consult with lawyers about “the illegal nature of the scheme” or ignored advice “regarding the illegality of the conspiracy.” See Cmplt., ¶ 31. App. 52

Plaintiffs then go on to allege failures in Defendants’ investigation of Plaintiffs’ business operations, such as not contacting the Bureau of Alcohol, Tobacco, and Firearms to learn the extent of Plaintiffs’ assistance in federal investigations; not inquiring as to the safeguards in place at Adventure Outdoors to prevent fraudulent firearms purchases; and failing to debrief the private investigators on the reasons why Investi- gator Nooner was requested to sign the “straw-man” purchase paragraph. Id. Plaintiffs’ complaint does not specify any damages suffered by Plaintiffs as a result of Defendants’ alleged negligent conduct, although Plaintiffs do allege in Paragraph 39 (entitled “tortious interference with business relations”) that the New York Defendants “tortiously interfered with the Plaintiffs’ business relations by each and every of the foregoing actions . . . to the express damage of the business relations of the Georgia Plaintiffs.” Id., ¶ 39. In their motion to dismiss, Defendants argue that Plaintiffs’ negligence claims fail because (1) failure to conduct a proper investigation is not cognizable as a negligence action under Georgia law, citing Tarver v. Wills, 174 Ga. App. 550 (1985), and (2) the only damages claimed by Plaintiffs are to “business relations,” but no economic loss is permitted under Georgia law. Plaintiffs do not respond to either of these arguments. In Tarver, an individual filed a medical malpractice suit against a doctor. The doctor’s motion for summary judgment in the malpractice suit was unopposed and was granted. The doctor then filed suit against the individual’s attorney for having App. 53

“maliciously” filed the malpractice action. The court of appeals held that, at most, the suit could be one for malicious use of process. Id. at 550. The court further held that there could be no cause of action against the attorney for negligence in filing the malpractice suit because of public policy concerns with respect to access to the courts and the attorney’s legal duty to his own client. Id. at 551. The court finds that this case citation alone is not sufficient to warrant dismissal at this stage. As an initial matter, it is unclear to the court that there is an equal position between the executive officials of the City of New York making a decision to initiate a lawsuit (allegedly after insufficient investigation) and the attorney for an injured plaintiff. Furthermore, as stated above, Plaintiffs’ negligence claim does not seem to be limited to Defendants’ alleged failure to investigate prior to filing a lawsuit, but rather it also seems to encompass a negligent failure to appreciate the allegedly illegal nature of the “sting” operations. To be clear, the court certainly appreciates Defen- dants’ contention that Plaintiffs’ negligence cause of action is not artfully formulated and ultimately may be deficient on the element of legal duty. The court merely holds that it cannot dismiss Plaintiffs’ negligence action at this stage based on the lone citation to Tarver, an action against an attorney, which does not describe the full set of Defendants here. Defendants next argue that Plaintiffs have not alleged damages cognizable in a tort action. The court finds this argument more persuasive. In General App. 54

Electric Co. v. Lowe’s Home Centers, 279 Ga. 77 (2005), the Supreme Court of Georgia held that “[u]nder the economic loss rule, a plaintiff can recover in tort only those economic losses resulting from injury to his person or damage to his property; a plaintiff cannot recover economic losses associated with injury to the person or damage to the property of another.” Id. at 78 (retail store filed suit against manufacturer seeking to recover damages caused by environmental contamination of retail store’s property). “Although the economic loss rule is more often applied in the context of products liability cases or ‘to distinguish between those actions cognizable in tort and those that may be brought only in contract,’ City of Cairo v. Hightower Consulting Engineers, Inc., 278 Ga. App. 721, 728 (2006),” the reasoning has been applied in other contexts. See, e.g., Remax The Moun- tain Co. v. Tabsum, Inc., 280 Ga. App. 425 (2006) (where business owners filed suit against owners of a mining facility alleging that a detour caused by the company’s negligent dumping of groundwater caused them to lose revenue and profits). See also Alco Standard Corp. v. Westinghouse Electric Corp., 206 Ga. App. 794, 794-95 (1992) (affirming superior court holding that “a cause of action in negligence may not be maintained to recover for economic injury”). Thus, the court finds that because the only damages alleged by Plaintiffs to have been caused by Defendants’ negligence is to their “business” their negligence tort claim is barred by the “economic loss” rule. App. 55

However, to the extent that Plaintiffs’ description of damages is intended to also state a claim for tortious interference with business relations, it survives Defendants’ motion to dismiss. To state a claim for tortious interference with business relations, “a plaintiff must show the defendant (1) acted improperly and without privilege, (2) acted purposely and with malice with the intent to injure, (3) induced a third party or parties not to enter into or continue a business relationship with the plaintiff, and (4) caused plaintiff financial injury.” See, e.g., Renden, Inc. v. Liberty Real Estate Ltd. Partnership, 213 Ga. App. 333, 334 (1994). Defendants contend that Plaintiffs cannot show their actions were without privilege and that Plain- tiffs have not alleged that any parties have not entered into a relationship or have discontinued a business relationship based on the actions of Defen- dants. The court addresses below the fact that the privilege issues at stake here cannot be resolved on a motion to dismiss. As to Defendants’ second argument, the court finds that on a motion to dismiss, it is sufficient for Plaintiffs to allege – as they have done in Paragraph 39 – that their business relations have been damaged. Compare Lively v. McDaniel, 240 Ga. App. 132 (1999) (dismissing tortious interference claim on summary judgment because plaintiff could not “identify a single client that he has lost or failed to acquire” due to defendant’s actions); Jenkins v. General Hospitals of Humana, 196 Ga. App. 150, 151 (1990) (granting summary judgment in favor of defendant because plaintiff could not “name a single App. 56 patient he has lost or failed to acquire” due to defendant’s acts). For the foregoing reasons, the court GRANTS Defendants’ motion to dismiss as to Plain- tiffs’ negligence claims, but DENIES Defendants’ motion to dismiss as to Plaintiffs’ tortious interference with business relations claim.

4. Libel and Slander Defendants allege that only Plaintiff Adventure Outdoors may bring a libel and slander claim against them and not Plaintiffs Jay and Cecilia Wallace. In support of this contention, Defendants point to WMH, Inc. v. Thomas, 195 Ga. App. 61, rev’d in part on other grounds, 260 Ga. 654 (1990). There, the court stated that an “individual may have a cause of action for defamatory statements made about a company when it is known that he is the owner of the company and his name is a component part of the company name.” Id. at 65 (emphasis added) (citing Weatherholt v. Howard, 143 Ga. 41 (1915); Southland Publishing Co. v. Sewell, 111 Ga. App. 803 (1965)). In Southland Publishing, the court held that the fact that the defamatory publication in terms designated a certain named place of business, ‘Smith & Sewell Garage,’ and did not refer to the plaintiff individually, does not as a matter of law prevent a recovery by him, where as here, the plaintiff alleged that he was a co-owner of the garage, and was un- derstood by the citizens of Forsyth County to be the ‘Sewell’ affiliated with that business, App. 57

and he was therefore identified personally in the publications complained of. 111 Ga. App. at 809. The plaintiff in that case was Carl Earl Sewell. In Weatherholt, the plaintiff was permitted to proceed on his defamation claims where he formerly owned the company and the company’s trade name has the plaintiff ’s individual name as a component part. 143 Ga. 41. Here, Plaintiffs allege in their complaint Plaintiffs Jay Wallace and Cecilia Wallace are Georgia Residents and were jointly and severally engaged in managing, promoting, and fulfilling the legitimate business in the sale of firearms, among many other items, of Adventure Outdoors, Inc., in their capacity as principals of Adventure Outdoors, Inc. on or about April 8, 2006. The Wallace family is closely associated with Adventure Outdoors, Inc. and in terms of reputations, the individuals and the company are interchangeable with each other, and locally are considered one and the same. A discussion of Adventure Outdoors is a discussion of the individuals, Jay and Cecilia Wallace. Cmplt., ¶¶ 12-13. Under the holdings of WMH, South- land, and Weatherholt, it must be known that the individual is an owner of the business and the name of the individual must be a component part of the business. While Plaintiffs allege that they are associated with the business Adventure Outdoors, their App. 58 name “Wallace” does not appear in the name of the business. Thus, the court finds that only Adventure Outdoors may pursue the defamation claims against Defendants. The parties next make a number of procedural arguments with respect to the interaction of Plain- tiffs’ defamation claims with Georgia’s anti-SLAPP (Strategic Lawsuits Against Public Participation) statute, codified at O.C.G.A. § 9-11-11.1. The Su- preme Court of Georgia has held that the purposes of Georgia’s anti-SLAPP statute are to encourage citizen participation in matters of public significance through the exercise of the right of free speech and the right to petition the government for redress of grievances, and to prevent their valid exercise from being chilled through abuse of the judicial process. Atlanta Humane Society v. Harkins, 278 Ga. 451, 452 (2004). In order to achieve these goals, the statute requires that written verification under oath accom- pany any claim asserted against a person arising from an act “which could reasonably be construed as an act in furtherance of the right of free speech or the right to petition government for a redress of grievances . . . in connection with an issue of public interest or concern.” See O.C.G.A. § 9-11-11.1(b). The verification must certify that the party and his attorney have read the claim and to the best of their knowledge after a reasonable inquiry, the claim is well grounded in fact and is warranted by existing App. 59

law or a good faith argument for the extension of existing law, and that the claim is not based on an act privileged under O.C.G.A. § 51-5-7(4), and that the claim is not interposed for an improper purpose or to cause unnecessary delay or needless increase in the cost of litigation. See O.C.G.A. § 9-11-11.1(b). The New York Defendants argue that because their New York lawsuit (and accompanying press conference and press releases) are statements made before a judicial proceeding, Plaintiffs’ causes of action against those statements must be verified under Georgia’s anti-SLAPP statute and Plaintiffs have not done so. Before the court can proceed to apply the anti- SLAPP statute to the claims raised in this litigation, however, the court must determine whether the anti- SLAPP statute applies in federal court.7 The Erie doctrine requires federal courts to apply the substantive law of a state when deciding substantive state law claims and federal law with regard to procedural matters. See Burlington N.R.R. v. Woods, 480 U.S. 1 (1987); Walker v. Armco Steel Corp., 446 U.S. 740

7 As discussed above, Defendants removed this suit to federal court on the basis of “arising under” jurisdiction of a substantial federal question with respect to the causes of action related to the actual straw man purchases. Whether the court considers the defamation claim as a supplemental state law claim or a diversity jurisdiction claim because it involves only the New York Defendants, the court would have to determine whether to apply the state law or a Federal Rule of Civil Proce- dure. App. 60

(1980); Hanna v. Plumer, 380 U.S. 460 (1965); Erie R.R. v. Tompkins, 304 U.S. 64 (1938). To distinguish substantive from procedural statutes, the Supreme Court has articulated a two-step test. Initially, a court must determine whether the state statute in question is in “direct collision” with any Federal Rule of Civil Procedure. Hanna, 380 U.S. at 472. A direct collision between a state statute and a federal rule occurs when the Federal Rule by itself is “sufficiently broad to control the issue,” Walker, 446 U.S. at 750, or where the purposes of the Federal Rule and state statute are “sufficiently coextensive” to preclude the application of the state law, Woods, 480 U.S. at 7. When conducting this analysis, courts must not construe Federal Rules narrowly to avoid a direct conflict but rather must give the rules their plain meaning. Walker, 446 U.S. at 750. If a direct conflict exists, then the Federal Rule controls unless it is found unconstitutional or found to modify, enlarge, or abridge any substantive rights under the Rules Enabling Act, 28 U.S.C. § 2072. The Federal Rules of Civil Procedure are granted pre- sumptive validity under this test and never have been found to violate this provision of the Supreme Court’s test, either collectively or independently. See Hanna, 380 U.S. at 472-74. Where no direct conflict exists, the state statute controls only if failure to apply it will thwart the “twin aims” of Erie by promoting forum shopping or unfairly discriminating against residents of the forum state. See Hanna, 380 U.S. at 468. App. 61

Under Hanna, the court finds that the verification provision of O.C.G.A. § 9-11-11.1 is contrary to the Federal Rules of Civil Procedure and does not apply in this case. Section 9-11-11.1 is certainly procedural. See Providence Construction Co. v. Bauer, 229 Ga. App. 679 (1997) (describing anti-SLAPP statute’s “several procedural safeguards”). Further, it also applies a heightened pleading requirement on plaintiffs in a defamation action, such that it conflicts with Federal Rule of Civil Procedure 8(a) which requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Rule 8(a) is constitutional and falls within the scope of the Rules Enabling Act. See Carter v. Hennessey, 781 F.2d 1569, 1570 (11th Cir. 1986) (holding that under Hanna federal court should follow Rule 8(a) rather than state’s strict pleading requirements). See also Baird v. Celis, 41 F. Supp. 2d 1358, 1362 (N.D. Ga. 1999) (Camp, J.) (holding that affidavit requirement of O.C.G.A. § 9-11-9.1 in medical malpractice actions does not apply to case brought in federal court). For the foregoing reasons, the court will not apply the procedural aspects of Georgia’s anti- SLAPP statute to this litigation, and the court finds that any failure of Plaintiffs to “verify” their complaint under the requirements of O.C.G.A. § 9-11- 11.1(b) is not grounds for dismissal in federal court. See, e.g., Stuborn Ltd. Partnership v. Bernstein, 245 F. Supp. 2d 312 (D. Mass. 2003) (refusing to apply App. 62 procedural rules of Massachusetts anti-SLAPP statute in federal court).8 The court recognizes, however, that certain aspects of the statute could be considered “substantive” in the sense of what communications are privileged under O.C.G.A. § 51-5-7. See Atlanta Humane Society v. Harkins, 278 Ga. 451 (2004) (describing such provisions as “substantive”). Those substantive provisions are applicable in federal court. Compare United States v. Lockheed Missiles & Space Co., 190 F.3d 963, 970-73 (9th Cir. 1999) (permitting the application of California’s anti-SLAPP statute with respect to the provision of a special motion to strike and the availability of fees and costs), with Metabolife International, Inc. v. Wornick, 264 F.3d 832 (9th Cir. 2001) (holding that discovery provisions of California’s anti-SLAPP statute would not apply in federal court).9

8 The court is aware that in Buckley v. DIRECTV, Inc., 276 F. Supp. 2d 1271, 1275 n.5 (N.D. Ga. 2003) (Shoob, J.), the court, applying the Ninth Circuit precedent, found that there was no Erie conflict between the Federal Rules and the procedural aspects of Georgia’s anti-SLAPP statute. See also AirTran Air- lines, Inc. v. Plain Dealer Publishing Co., 66 F. Supp. 2d 1355, 1369 (N.D. Ga. 1999) (Moye, J.) (assuming without deciding that Georgia anti-SLAPP statute applies in federal diversity actions). The court disagrees with the analysis in those cases. 9 Because of the manner in which the court rules below, the court need not determine whether the anti-SLAPP statute would provide protection to the New York Defendants who, obviously, are not residents of Georgia. See O.C.G.A. § 9-11-11.1(a) (noting that the “General Assembly of Georgia finds and declares that it (Continued on following page) App. 63

The court now turns to Defendants’ contention that Plaintiffs’ defamation claims fail because De- fendants’ statements were privileged (1) as fair and honest reportings of judicial proceedings (the filing of the New York complaint) and (2) as statements made in the good faith performance of a public duty. De- fendants also aver that the statements were “opinion” and therefore outside the scope of libel and slander laws. Plaintiffs respond that whether theses [sic] statements were made in good faith will be a question for the jury. To review, Plaintiffs allege that the following statements made by the New York Defendants are defamatory. By Defendant Bloomberg: “ . . . these dealers are the worst of the worst,” “a scourge on our society,” “and most are sold by a small [group] of rogue gun dealers who refuse to obey federal laws,” “caught them . . . breaking the Federal laws regulating gun sales,” “group of bad apples who routinely ignore federal regulations.” By Defendant Cardozo: “stop your illegal conduct or you too will face this kind of penalty” and “targeting 15 specific irresponsible gun dealers.” Defendant Feinblatt: “ . . . holding gun dealers who break the law accountable . . . ,”

is in the public interest to encourage participation by the citizens of Georgia in matters of public significance through the exercise of their constitutional rights of freedom of speech and the right to petition the government for redress of grievances”). The court also declines to consider whether the statute would apply to protect elected officials as opposed to “citizens.” App. 64

“ . . . sent a loud and clear message to rogue dealers . . . ,” “immoral and corrupt dealers . . . ,” “ . . . small band of rogue dealers . . . ,” and “Plain and simple these dealers have New Yorkers’ blood on their Hands.” By Defendant Kelly: “ . . . lost their lives . . . as a result of this deadly commerce these dealers are . . . careless . . . reckless.” See Cmplt., ¶ 27.10 Georgia and New York both recognize a conditional privilege for fair and accurate reporting of the facts of a judicial proceeding. See O.C.G.A. § 51-5-7(6); Minton v. Thomson Newspapers, Inc., 175 Ga. App. 525 (1985); N.Y. Civil Rights Law § 74. However, the statements listed above are not reporting of the facts of a judicial proceeding. Other aspects of the press conference and press releases made by the New York Defendants may have reported the facts of the filing of the New York Complaint and its causes of action, for example. But the statements Plaintiffs use as the basis for their defamation actions do not describe the judicial proceedings; rather, they express the New York Defendants’ characteriza- tion of the actions of Adventure Outdoors. Therefore, the court finds that the privilege for reporting on judicial proceedings is not applicable to the chal- lenged statements.

10 Plaintiffs allege these statements were made by the New York Defendants, not the Private Investigator Defendants. As such, it is clear that Plaintiffs have no defamation cause of action against the Private Investigator Defendants. App. 65

At this stage, the court must engage in a choice of law analysis. Although Georgia law and New York law have some aspects of privilege in relation to defamation claims in common (such as the existence of a privilege for the fair reporting of judicial proceedings), there exists a conflict between Georgia and New York law as to the extent of privilege granted to public officials engaged in public duties. In New York (with certain limitations not obviously relevant here), public officials enjoy absolute immunity for statements made in the course of their official duties relating to matters within the jurisdiction of their official duties. See, e.g., Clark v. McGee, 49 N.Y.2d 613, 617 (N.Y. 1980). In Georgia, however, the privilege extended to public officials is not absolute, but rather is conditional. Under Georgia law, “statements made bona fide in the performance of a public duty are privileged; communications made by a public official with respect to his official duties are privileged.” See, e.g., McKinnon v. Trivett, 136 Ga. App. 59, 61-62 (1975) (privilege attached where statements made by mayor at a town meeting and concerned theft of city funds). “However, we have held that this privilege may be lost when the official acts wilfully, corruptly, or maliciously.” Id. at 62. Clearly, this absolute and conditional privilege distinction is particularly relevant at the motion to dismiss stage. Once again, the court applies Georgia’s choice of law provisions to determine which forum’s law applies to the defamation claims. Georgia courts follow the rule of lex loci delicitus in determining which App. 66

state’s law to apply in tort actions. See, e.g., Sargent Indus. v. Delta Air Lines, 251 Ga. 91 (1982); Wardell v. Richmond Screw Anchor Co., 133 Ga. App. 378, 390 (1974). While courts sometimes view the place of publication as the location of the tort, see Triguero v. ABN AMRO Bank N.V., 273 Ga. App. 92, 95 (2005), where publication occurs simultaneously in several states, courts will consider the “most significant relationship” test, which generally points to the plaintiff’s domicile. See, e.g., Ramsey v. Fox News Network, L.L.C., 351 F. Supp. 2d 1145 (D. Colo. 2005) (applying Georgia law and noting that “place of the wrong” in defamation is usually “where the defamatory statement is communicated” but noting that in multistate defamation case Georgia would apply “most significant relationship” test); Restatement (Second) Con- flict of Laws § 150. Here, Plaintiffs allege that Defendants dissemi- nated their statements to “the news media, both print and electronic, and both national and local.” See Cmplt., ¶¶ 20, 28 (“Said statements were distributed on the World Wide Web and by most, if not all of the national news media.”); ¶ 29 (“Specifically, the statements made on May 15, 2006 appeared in the Atlanta Journal Constitution on or about May 18, 2006.”). Thus, the court finds that under these circumstances, Georgia would apply the law of Plaintiffs’ domicile – Georgia – to Plaintiffs’ defamation claims. As discussed above, Georgia grants conditional and not absolute privilege to statements made in the performance of a public duty. Therefore, Defendants’ claim App. 67

of privilege as public officials acting in the course of their duties cannot be resolved on a motion to dismiss. Finally, Defendants contend that their statements are non-actionable statements of opinion. In Gast v. Brittain, 277 Ga. 340 (2003), the plaintiff, who was a Boy Scout leader, filed a libel claim against a former youth group leader who circulated a letter of resignation in which he referred to the plaintiff as immoral and not living his life according to the “ideals of Scouting.” The defendant moved for summary judgment arguing that those statements were non-actionable opinion. The trial court granted summary judgment on this basis, but the court of appeals reversed. In its opinion, the Supreme Court of Georgia first set out that the expression of opinion on matters with respect to which reasonable men might enter- tain differing opinions is not libelous. . . . An assertion that cannot be proved false cannot be held libelous. A writer cannot be sued for simply expressing his opinion of another person, however unreasonable the opinion or vituperous the expressing of it might be. Id. at 341 (quoting Bergen v. Martindale-Hubbell, 176 Ga. App. 745, 747 (1985)). The Court then held that the youth’s assertions of “immorality” and the “ideals of Scouting” are “plainly the sorts of opinions that are incapable of being proved false.” Id. (citing Webster v. Wilkins, 217 Ga. App. 194, 195 (1995) (statement that plaintiff was “unfit to have a kid” not defamatory App. 68 because it is incapable of being proved false); Collins v. Cox Enterprises, 215 Ga. App. 679, 680 (1994) (statement that candidate was trying to fool voters by changing his name “does not imply an assertion of objective fact that might be proved false”); Blomberg v. Cox Enterprises, 228 Ga. App. 178, 180 (1997) (statement that plaintiff was a “silvered tongue devil” not defamatory because incapable of being objectively proved false)). The Court recognized, however, that there is no “wholesale defamation exception for anything that might be labeled opinion.” Id. (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 18 (1990)). “An opinion can constitute actionable defamation if the opinion can reasonably be interpreted, according to the context of the entire writing in which the opinion appears, to state or imply defamatory facts about the plaintiff that are capable of being proved false.” Id. In Atlanta Humane Society v. Mills, 274 Ga. App. 159 (2005), the court applied Gast in holding that statements that a person was “evil” or “worthy” to lick excrement from shoes, or referring to him as “Mr. Kill” were “obviously exaggerated and unprovable assertions.” Id. at 166. Here, the court finds that the following statements are non-actionable opinion because they are incapable of being proved false: • “ . . . these dealers are the worst of the worst”; • “a scourge on our society”; App. 69

• “targeting 15 specific irresponsible gun dealers”; • “ . . . sent a loud and clear message to rogue dealers . . . ”; • “ . . . immoral and corrupt dealers . . . ”; and • “ . . . small band of rogue dealers . . . ” Clearly, however, the statements that allege criminal wrongdoing by Adventure Outdoors are capable of being proved false. See Gast, 277 Ga. at 341 (distinguishing non actionable statements because the allegations of “specific criminal conduct” were directed at another individual); Cox Enterprises v. Nix, 274 Ga. 801, 803 (2002) (distinguishing non- actionable statements made about the plaintiff because they were “set apart from any reference to lawyers accused of criminal conduct” and their interpretation “does not include a statement, implication, or suggestion that [the plaintiff] was engaged in criminal conduct”). Because it is possible to prove false an allegation that Adventure Outdoors broke the law, the court finds that the following statements fall into that category and are actionable (with the operative language emphasized): • “ – and most are sold by a small [group] of rogue gun dealers who refuse to obey federal laws.” • “caught them . . . breaking the Federal laws regulating gun Sales.” • “group of bad apples who routinely ignore federal regulations.” App. 70

• “stop your illegal conduct or you too will face this kind of penalty”; and • “ . . . holding gun dealers who break the law accountable. . . .” Finally, the court finds that the statements • “Plain and simple these dealers have New Yorkers’ blood on their Hands” and • “ . . . lost their lives . . . as a result of this deadly commerce. . . . these dealers are . . . careless . . . reckless” “could reasonably be interpreted to state or imply . . . defamatory facts” about Plaintiffs “that are capable of being proved false” and are, thus, also actionable. See Gast, 277 Ga. at 341. That is, Defendants asserted that Adventure Outdoors had “the blood of New Yorkers on their hands” because they sold guns in an illegal manner. Similarly, the assertion of “deadly commerce” and “careless and reckless” dealers im- plies that Adventure Outdoors was not following the law in the running of their business. For the foregoing reasons, the court GRANTS IN PART AND DENIES IN PART Defendants’ motion to dismiss as to Plaintiffs’ defamation claims.

C. Transfer to the Eastern District of New York Finally, Defendants ask the court to transfer this action to the Eastern District of New York pursuant App. 71

to the “first filed” rule, 28 U.S.C. § 1631, or 28 U.S.C. § 1404(a). “Where two actions involving overlapping issues and parties are pending in two federal courts, there is a strong presumption across the federal circuits that favors the forum of the first-filed suit under the first-filed rule.” See Manual v. Convergys Corp., 430 F.3d 1132, 1135 (11th Cir. 2005); see also Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Haydu, 675 F.2d 1169, 1174 (11th Cir. 1982) (“In [the] absence of compelling circumstances, the court initially seized of a controversy should be the one to decide the case.”). There must, however, be substantial overlap between the two cases in parties and claims. See, e.g., In re Cuyahoga Equipment, Corp., 980 F.2d 110 (2d Cir. 1992) (rule applies “when identical or substantially similar parties and claims are present in both courts”); Mann Manufacturing, Inc. v. Hortex, Inc., 439 F.2d 403, 408 (5th Cir. 1971) (applying first filed rule where “the likelihood of substantial overlap between the two suits had been demonstrated”). Here, the New York lawsuit raises causes of action of public nuisance, statutory nuisance, negligence per se, negligence, and negligent entrustment. It seeks an injunction ordering inter alia “each De- fendant to comply with federal, state and local laws related to the sale of guns, including ceasing to engage in straw sales.” The New York lawsuit, thus, addresses Adventure Outdoors’ alleged negligence in permitting straw purchases to take place in its gun shop, thereby allowing guns possessed by criminals to feed into the New York market. App. 72

Plaintiffs’ suit in Georgia raises causes of action of libel and slander, negligence and gross negligence, perhaps tortious interference, aiding and abetting, and special violations. Plaintiffs’ suit surrounds the propriety of New York Defendants’ sending private investigators into Georgia to simulate straw purchases at Georgia gun shops. Plaintiffs also contend that the New York Defendants defamed them in press releases and conferences detailing the sales activities. The only issue that could possibly substantially overlap is what happened during the actual gun sale in the Adventure Outdoors store. The court finds that this overlap is not sufficient to invoke the first-filed rule, particularly where Plaintiffs allege that they have been defamed and the effects of that defamation are being felt by Plaintiffs in the Georgia forum. Furthermore, a reading of section 1631 suggests that it applies only to cases originally filed in federal court and thus would not be a basis for transferring this lawsuit which was originally filed in state court. See 28 U.S.C. § 610 (“the word ‘courts’ includes the courts of appeals and the district courts of the United States”). Finally, a court may transfer venue of a case for “the convenience of parties and witnesses [or] in the interests of justice.” 28 U.S.C. § 1404(a). The plaintiff’s choice of forum, however, should not be dis- turbed “unless it is clearly outweighed by other considerations.” Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253, 260 (11th Cir. 1996). Those other considerations include convenience of the witnesses, parties, App. 73 and the interests of justice. See Electronic Transac- tion Network v. Katz, 734 F. Supp. 492, 501-02 (N.D. Ga. 1989) (Forrester, J.). When granting such a motion would “merely shift inconvenience from defendants to plaintiff,” transferring venue is not appropriate. Robinson, 74 F.3d at 260. Defendants have proffered no reason why the Eastern District of New York would be more convenient for the witnesses or the parties. The witnesses would include the plaintiffs, employees of Adventure Outdoors, and private investigators sent into Adventure Outdoors, all Georgia residents. While it is true that other Defend- ants are New York residents, the court finds that a transfer to New York would merely shift the inconvenience from Defendants to Plaintiffs. Therefore, the court declines to transfer this case pursuant to § 1404(a).

III. Conclusion The court DENIES Plaintiffs’ motion to remand [3-1]; GRANTS Defendants’ motion for leave to file excess pages [6-1]; GRANTS IN PART AND DENIES IN PART Defendants’ motion to dismiss [7-1] or in the alternative to transfer case to the United States Dis- trict Court for the Eastern District of New York [7-2]; DENIES AS MOOT Plaintiffs’ renewed motion to remand [13-1]; DENIES AS MOOT Plaintiffs’ motion to amend complaint [14-1]; and GRANTS Plaintiffs’ motion to amend complaint [18-1]. App. 74

Defendants are DIRECTED to ANSWER Plain- tiffs’ complaint within thirty (30) days. IT IS SO ORDERED this 20th day of Septem- ber 2007. s/ J. Owen Forrester J. OWEN FORRESTER SENIOR UNITED STATES DISTRICT JUDGE

App. 75

[SEAL] SUPREME COURT OF GEORGIA Case No. S11C0648 Atlanta, May 16, 2011 The Honorable Supreme Court met pursuant to adjournment. The following order was passed. ADVENTURE OUTDOORS, INC., et al. v. MICHAEL BLOOMBERG et al. The Supreme Court today denied the petition for certiorari in this case. All the Justices concur. Court of Appeals Case No. A10A1439 SUPREME COURT OF THE STATE OF GEORGIA Clerk’s Office, Atlanta I certify that the above is a true ex- tract from minutes of the Supreme Court of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written. /s/ Theresa S. Barnes, Clerk

App. 76

[SEAL] SUPREME COURT OF GEORGIA Case No. S11C0648 Atlanta, June 13, 2011 The Honorable Supreme Court met pursuant to adjournment. The following order was passed. ADVENTURE OUTDOORS, INC., et al. v. MICHAEL BLOOMBERG et al. Upon consideration of the Motion for Re- consideration filed in this case, it is ordered that it be hereby denied. All the Justices concur. SUPREME COURT OF THE STATE OF GEORGIA Clerk’s Office, Atlanta I certify that the above is a true ex- tract from minutes of the Supreme Court of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written. /s/ Theresa S. Barnes, Clerk

App. 77

IN THE SUPREME COURT OF THE STATE OF GEORGIA

ADVENTURE OUTDOORS, INC.; JAY WALLACE, a Georgia Resident; and CECILIA WALLACE, a Georgia Resident, Appellants, v. MICHAEL BLOOMBERG, a New York Resident and Mayor of the City of New York; TANYA MARIE NOONER, a Georgia Resident; MELISSA MERCED, a Georgia Resident, of the Nooner Investigative Georgia Court of Group, a/k/a Nooner Initiatives, Inc.; Appeals Appellate JOSEPH TOUNSEL, a Georgia Case No: Resident, of the Nooner Investigative A10A1439 Group, a/k/a Nooner Initiatives, Inc.; THE NOONER INVESTIGATIVE Supreme Court GROUP, a/k/a Nooner Initiatives, Inc.; of Georgia No. THE JAMES MINTZ GROUP, and JAMES MINTZ, individually, Certain of Its other Principals & Agents, As Yet Unidentified; MICHAEL CARDOZO, Corporation Counsel of the City of New York; JOHN FEINBLATT, Criminal Justice Coordinator of the City of New York; and RAYMOND KELLY, a New York Resident and Chief of the New York City Police Department, Appellees

App. 78

PETITION FOR CERTIORARI (Filed Jan. 1, 2011) [1] TABLE OF CONTENTS PETITION FOR CERTIORARI ...... 0 TABLE OF AUTHORITIES ...... 3 JURISDICTION ...... 6 FACTUAL BACKGROUND ...... 6 PROCEDURAL HISTORY ...... 9 ENUMERATION OF ERRORS ...... 10 I. The decision by the Court of Appeals ignored the mandate of Atlanta Humane Society v. Harkins, 278 Ga. 451, 603 S.E 2d 289(2004), and in so doing committed error ...... 10 II. The decision by the Court of Appeals failed to recognize that not all speech is “arguably in furtherance of the right of free speech,” and that some speech is “properly prohibited,” and said failure to so rule is error ...... 10 III. The decision by the Court of Appeals below failed to consider and rule that the interlocking provisions of O.C.G.A. § 9- 11-11.1 and O.C.G.A. § 51-5-7(4), in order to have legal relevance, must incorporate the qualifying “good faith” language of O.C.G.A. § 51-5-7(4) and said failure to so rule is error ...... 10

App. 79

IV. The decision by the Court of Appeals rendered meaningless the clear language of O.C.G.A. § 51-5-4 and thereby requires the verification requirement of O.C.G.A. § 9-11-11.1 to be a necessary predicate to suit even in the instance of slander per se, and in so ruling committed error ...... 11 V. The decision by the Court of Appeals violated fundamental rules of construction regarding statutory interpretation, and to rule as it did is error ...... 11 VI. The anti-SLAPP statute is not intended for a matter such as this, but is intended to protect the weak against the mighty and the failure to recognize that by the lower courts is error ...... 11 PETITIONERS’ ARGUMENTS ...... 11 I. The Decision By The Court Of Appeals Ignored The Mandate Of Atlanta Hu- mane Society v. Harkins, 278 Ga. 451, 603 S.E. 2d 289 (2004) And In So Doing Committed Error ...... 11 II. Neither Anti-SLAPP, Nor Its Verification Provision Are Applicable hi This Matter ... 14 III. There Is A Reason The Legislature Inter- locked O.C.G.A. § 9-11-11.1 And O.C.G.A. § 51-57(4) And The Decisions By The Courts Below Rendered Those Interlock- ing Provisions A Legal Nullity ...... 19

App. 80

[2] IV. The Practical Effect of the Rulings Be- low Make the Verification Requirement a Mandated Requirement in All Defama- tion Matters and Caused that Require- ment Improperly to Supplant O.C.G.A. § 51-5-4 ...... 21 V. The Rulings Below Violate the Fundamen- tal Rules of Statutory Construction In Concluding Georgia’s Anti-SLAPP Statute Applies More Broadly than its Terms ...... 22 VI. This is a Statute (O.C.G.A. § 9-11-11.1) Which, Though no Georgia Court has ever So-Stated, is About Little People or Enti- ties Versus Powerful People or Entities; it is About “David Versus Goliath” and the Court of Appeals Failed to Acknowledge that Principle and that Failure is Error ..... 27 CONCLUSION ...... 28

[3] TABLE OF AUTHORITIES Cases Aikens v. Wisconsin, 195 U.S. 194 (1904) ...... 15 Atlanta Humane Society v. Harkins, 278 Ga. 451 (2004) ...... passim Chaplinksy v. New Hampshire, 315 U.S. 568 (1942) ...... 16 Civil Action File No. 06-1-9667-18 ...... 9 Connecticut National Bank v. Germain, 503 U.S. 249, 253, 112 S. Ct. 1146, 1149, 117 L. Ed. 2d 391(1992) ...... 23, 24 App. 81

Cunningham v. State, 260 Ga. 827,828 (1991) ...... 16 Department of Human Resources v. Coley, et al., 247 Ga. App. 392; 544 S.E. 2d 165 (2000) ...... 23 Etkind v. Suarez, 271 Ga. 352; 519 S.E. 2d 210 (1999) ...... 23 Evans v. State, 188 Ga. App. 347 (1988) ...... 17 Gertz v. Welch, 418 U.S. 323, 94 S. Ct. 2997, 41 L.Ed.2d 789 (1974) ...... 27 Good Samaritan Hosp. v. Shalala, 502 U.S. 402, 409, 113 S.Ct. 2151, 2157, 124 L.Ed.2d 368 (1993) ...... 23 Harcrow v. Struhar, 236 Ga. App. 403, 511 S.E. 2d (1999) ...... 13 Holmes v. Clisby, 121 Ga. 241 (1904) ...... 20 In re Interest of R.G., 246 Ga. App. 276, 612 S.E. 2d 94 (2005) ...... 25 Lamb v. Fedderwitz, 68 Ga. App. 233 (1942) ...... 20 Linn v. United Plant Guard Workers of Amer- ica, Local 114, 383 U.S. 53, 86 S. Ct. 657 (1966) ...... 21 Masson v. Slaton, 320 F.Supp. 669 (1970) ...... 15 McCutcheon v. Smith, 199 Ga. 685, 691 (2) (35 S.E. 2d 144) (1945) ...... 23 McGill v. State, 209 Ga. 500, 74 S.E. 2d 78 (1953) ...... 17 Modern Homes Construction Co. v. Burke, 219 Ga. 710, 715 (135 S.E. 2d 383) (1964) ...... 23 National Wildlife Federation, et al. v. Marsh ...... 26 App. 82

North Dakota v. United States, 460 U.S. 300 (1983) ...... 26 [4] Riddle v. Golden Isles Broadcasting, LLC, 292 Ga. App. 888, 666 S.E. 2d 75 (2008 ...... 13 Schenck v. United States, 249 U.S. 47 (1919) ...... 15 Speedway Grading Corp. v. Gardner, 206 Ga. App. 439, 425 S.E. 2d 676 (1992) ...... 13 Stuborn v. Frederick L. Bernstein and Iris Bernstein, 245 F.Supp.2d 312 (U.S. Dist. Ct. for the Dist. of Mass., 2003) ...... 27 United States v. Gilbert, 198 F 3d 1293, 1298 (11th Cir. 1999) ...... 24 United States v. Steele, 147 F 3d 1316, 1318 (11th Cir. 1998) ...... 24

Statutes Ga. Code Ann.§ 26-1307 ...... 15 O.C.G.A. § 51-5-4 ...... passim O.C.G.A. § 51-5-7 ...... 20 O.C.G.A. § 51-5-7(4) ...... 10, 14, 20 O.C.G.A. § 9-11-11.1 ...... passim

Other Authorities 1996 Ga. Act 616; 1995 Ga. SB 1 ...... 26 1996 Ga. ALS 616 ...... 25 Appeal Nos. 07-14966-HH and 15951-HH ...... 10 Court of Appeals R. 16-17, 315 ...... 8 App. 83

Court of Appeals R. 282, 283, 285, 287 ...... 16 Court of Appeals R. 282, 283, 285, 287 ...... 17 Court of Appeals R. 284, 319, 320 ...... 12 Court of Appeals R. 287 ...... 19 Court of Appeals R. 317 ...... 16 June 15, 2009 Hearing T. 8 ...... 14 June 15, 2009 Hearing T. 9, 10 ...... 19 [5] June 15, 2009 Hearing T. 9, 17 ...... 12

[6] COME NOW Appellants in the above-styled cause, and hereby seek to be heard in the Supreme Court of Georgia with regard to erroneous rulings by the Superior Court of Cobb County and the affirma- tion of those rulings by the Georgia Court of Appeals. This Petition For Certiorari raises issues of great concern, gravity and importance to the public, to the courts, and to the legislature. The core issues are an erroneous interpretation by the lower Courts of the scope of the verification requirement of O.C.G.A. § 9- 11-11.1 (anti-SLAPP); an erroneous interpretation of the condition precedent to applicability of anti- SLAPP; and several erroneous treatments of other Georgia statutes. These are specifically, O.C.G.A. § 9- 11-11.1 and the meaning of its interconnected requirement with O.C.G.A. § 51-5-7(4) and the intent of O.C.G.A. § 51-5-4.

App. 84

JURISDICTION The Court of Appeals of Georgia (in Case No. A10A1439) ruled adversely to the Plaintiffs on No- vember 24, 2010, and denied the Motion For Recon- sideration on December 13, 2010, The Supreme Court is the appropriate jurisdiction to appeal from final decisions of the Court of Appeals.

FACTUAL BACKGROUND The Petitioners before this Court are a family in Smyrna, Georgia and their business, a sporting company known as Adventure Outdoors. The Respon- dents will be the Mayor of New York City and a number of high ranking employees of [7] the City of New York, a deceased Georgia investigator, and a surviving Georgia investigator. The Mayor of New York, Michael Bloomberg, an anti-firearms Mayor, made a decision to hire investigators to attempt to purchase firearms in states he viewed as problems. Georgia was one of those states and Adventure Out- doors was a company that the Mayor and his people targeted. On April 8, 2006 private investigators Tanya Marie Nooner (now deceased) and Joseph Tounsel entered Adventure Outdoors and attempted to simulate a “straw purchase” of a firearm. They had video and audio equipment which malfunctioned. However, they were able to purchase a standard Glock 9mm handgun. The manager at Adventure Outdoors har- bored some suspicion concerning their actions, and App. 85 made both of them initial the ATF Form 4473 certifying that they had been truthful in the said purchase. Other than that information, the Mayor and the people involved in the Mayor’s plan knew only that 21 firearms that had at one time been owned by Adventure Outdoors had been retrieved in New York City in incidents or crime scenes between 2000 and 2004. This was known from ATF trace data which supplies no information other than the initial sale from the manufacturer who the sold the firearm to Adventure Outdoors. The New York Defendants did not know how many firearms Adventure Outdoors sold during that same four year period (the number was greater than 42,000). In short, they knew virtually nothing about [8] Adventure Outdoors or its owners. Moreover, the New York Defendants made no attempt to learn anything about them. On May 15, 2006 the Mayor and his supporters (on behalf of the City of New York) filed a lawsuit in federal court in the United States District Court for the Eastern District of New York. Prior to the lawsuit’s announcement, neither the Mayor nor any of the speakers viewed the Adventure Outdoors record- ings, a fact revealed in discovery in the EDNY lawsuit. The announcement of that lawsuit is the subject of the controversy Petitioners are asking this Court to agree to hear. The setting has obscured all relevant conduct that Petitioners have questioned, insofar as each decision below appears to focus only on the

App. 86

announcement’s locus, not its content, which is malicious and false slander. Among their comments were: • “ – and most are sold by a small [group] of rogue gun dealers who refuse to obey federal laws.” • “Caught them . . . breaking the Federal laws regulating gun sales.” • “group of bad apples who routinely ignore federal regulations.” • “stop your illegal conduct or you too will face this kind of penalty” • “ . . . holding gun dealers who break the law accountable. . . .” • “Plain and simple these dealers have New Yorkers’ blood on their Hands” • “ . . . lost their lives . . . as a result of this deadly commerce . . . . these dealers are . . . careless . . . reckless” (Court of Appeals R. 16-17, 315.) [9] The speakers were the Mayor and the other named New York Defendants. In fact, the Plaintiffs herein have never been charged with any crimes, much less convicted of any crimes, whether concerning firearms or any other offense. Subsequently, Adventure Outdoors and the Wallaces, its owners, filed a defamation action. The complaint did not contain a verification that, to date, the lower Courts have stated was necessary pursuant App. 87

to O.C.G.A. § 9-11-11.1; but which Plaintiffs respectfully assert, was not and is not required by said statute.

PROCEDURAL HISTORY On or about November 29, 2006 this action, sounding principally in slander, was filed against the named Defendants. No O.C.G.A. § 9-11-11.1 verification has ever been filed, although the Defendants on a number of occasions have made claims that such a verification was necessary to proceed forward. The Plaintiffs have countered that on the facts of this case, O.C.G.A. § 9-11-11.1 was and is inapplicable because the language in question and the subject of the claims herein is not “arguably in furtherance of the right of free speech.” (The Cobb County lawsuit is Civil Action File No. 06-1-9667-18.) Shortly after the filing of the action, it was removed by the Defendants to the United States District Court for the Northern District of Georgia (1:06-CV-2897-JOF). Plaintiffs’ Motion to Remand was initially denied. The matter was appealed [10] to the United States Court of Appeals for the 11th Cir- cuit (Appeal Nos. 07-14966-HH and 15951-HH). After briefing, the 11th Circuit reversed and directed the District Court to remand, which occurred on Febru- ary 25, 2009. On June 15, 2009 a hearing was held in the Cobb County Superior Court. On September 30, 2009 the Honorable George Kreeger granted Defendants’ App. 88

Motion to Dismiss, which Order was timely appealed, briefed and argued, and decision was forthcoming from the Georgia Court of Appeals on November 24, 2010. The Petitioners filed a Motion For Reconsidera- tion, which Motion was denied by the Court of Ap- peals on December 13, 2010. No discovery has occurred from the inception of this lawsuit until the time of this Petition.

ENUMERATION OF ERRORS I. The decision by the Court of Appeals ignored the mandate of Atlanta Humane Society v. Harkins, 278 Ga. 451, 603 S.E 2d 289(2004), and in so doing committed error. II. The decision by the Court of Appeals failed to recognize that not all speech is “arguably in furtherance of the right of free speech,” and that some speech is “properly prohibited,” and said failure to so rule is error. III. The decision by the Court of Appeals below failed to consider and rule that the interlocking provisions of O.C.G.A. § 9-11-11.1 and O.C.G.A. § 51- 57(4), in order to have legal relevance, must incorporate the qualifying “good faith” language of O.C.G.A. § 51-5-7(4) and said failure to so rule is error. [11] IV. The decision by the Court of Appeals rendered meaningless the clear language of O.C.G.A. § 51-5- 4 and thereby requires the verification requirement of O.C.G.A. § 9-11-11.1 to be a necessary App. 89

predicate to suit even in the instance of slander per se, and in so ruling committed error. V. The decision by the Court of Appeals violated fundamental rules of construction regarding statutory interpretation, and to rule as it did is error. VI. The anti-SLAPP statute is not intended for a matter such as this, but is intended to protect the weak against the mighty and the failure to recognize that by the lower courts is error.

PETITIONERS’ ARGUMENTS I. The Decision By The Court Of Appeals Ignored The Mandate Of Atlanta Humane Society v. Harkins, 278 Ga. 451, 603 S.E. 2d 289 (2004) And In So Doing Committed Error. Petitioners show respectfully that Atlanta Hu- mane Society v. Harkins, 278 Ga. 451, 603 S.E. 2d 289 (2004) is controlling as to the cause before the Court in this Petition for Certiorari. The ruling of Harkins specifically addresses the manner in which the anti- SLAPP verification requirement must be analyzed. In Harkins, id., Justice Carley, writing for the Court, ruled concerning two important facets of anti-SLAPP (anti-Strategic Litigation Against Public Participa- tion) considerations. First, the action must meet the “description of a claim which comes within the purview of the anti- SLAPP statute”; which Petitioners assert (and have done so consistently) the language here does not. Beyond that, Justice Carley also stated, [12] without App. 90

equivocation, that even if the action falls within the purview of anti-SLAPP, dismissal is not required. Id. at 455-456. The second mandate, which the Courts below have ignored and not procedurally followed, is: “[b]e- fore the trial court is authorized to dismiss the claim, it must further determine that the statements were made in good faith, or that the claim is interposed for an improper purpose or without a reasonable belief that it is well grounded in fact and is warranted by good faith reliance on substantive law.” Harkins, supra, at 455-456 (emphasis added). Again, in Harkins, id., “[t]he Court of Appeals failed to consider this essential step in anti-SLAPP analysis . . . ” just as the Courts below failed to do here. The trial court’s re- sponsibility is the same whether the verification was falsely filed, or not filed at all, as occurred in this case. (Court of Appeals R. 284, 319, 320.) (June 15, 2009 Hearing T. 9, 17.) The Court of Appeals did not correctly rule in Harkins and respectfully, Petitioners assert that the same deficiency occurred here. Defendants’ actions constituted a clear attempt to damage the reputation of Adventure Outdoors (and incidentally, the Wallace family), not merely through harmless statements but rather intentional libelous conduct, including malicious and conscious disregard for the truth and false accusations. These statements were directly aimed at the Plaintiffs in order to neg- atively impact them. “Whether stated directly or by implication or innuendo, it is libelous per se to falsely state that a [13] person is guilty of a crime or has a App. 91

criminal case pending against him.” Harcrow v. Struhar, 236 Ga. App. 403, 511 S.E. 2d (1999). “Where uttered words constitute slander per se by imputing the commission of a crime to another, an injury to the reputation is shown without proof of special damages, and the injury falls within the category of general damages.” Riddle v. Golden Isles Broadcasting, LLC, 292 Ga. App. 888, 666 S.E. 2d 75 (2008). The comments indicating that Adventure Outdoors is “careless . . . reckless,” “routinely violate[s] federal laws,” and that they had “New Yorkers’ blood on their hands,” clearly displays the malicious intent of the Defendants. The Court should therefore recognize this directness which causes the audience to perceive Plaintiffs falsely as killers. If a statement is of the type that is “not ambiguous and can reasonably have only one interpretation, the question of defamation is one of law for the court.” Speedway Grading Corp. v. Gardner, 206 Ga. App. 439, 425 S.E. 2d 676 (1992). Insofar as the lower Courts have overlooked the issue of intent (and the content of the language) in order to assess the conduct of the Defendants and if in fact it was in “bad faith,” this Court should now address this issue, pursuant to Harkins, supra. The problem here began when the trial court ruled without expressing explicitly in its Order that its findings were substantially as follows: The Court has found that these, the statements in question, were made in “good faith;” and the Court has further found that the Plaintiffs’ claim is interposed for an improper purpose; or the [14] claim is made without a App. 92

reasonable belief that it is well grounded in fact and is warranted by existing law or a reasonable extension of existing law. Had the trial court done that, instead of glossing over the dictates of this Court in Harkins, the trial court’s ruling would have been unsupport- able. How can a conclusion be drawn that this lawsuit is in “bad faith” or done without a quality purpose? To draw such conclusions is tantamount to decimating at least two statutes: O.C.G.A. § 51-5-7(4) and O.C.G.A. § 51-5-4, which will be argued infra. Instead what both the trial Court and the Court of Appeals have done is ignore Harkins’ language, paint with an impermissibly broad brush, and, in essence say that the setting of the words is absolutely controlling.

II. Neither Anti-SLAPP, Nor Its Verification Pro- vision Are Applicable In This Matter. The Courts below erred when they concluded that the verification provision of O.C.G.A. § 9-11-11.1 was a requirement in this case. Respectfully, there can be no such requirement. By its ruling, the Court below holds, in effect, any “speech,” though it be false and malicious, is “arguably in furtherance of the right of free speech.” Such consequence clearly stretches the anti-SLAPP statute far beyond its intended or reasonable scope. The speech here complained of is “properly prohibited speech.” (June 15, 2009 Hearing T. 8.) App. 93

[15] A. The Speech Utilized Here Was Not “arguably in furtherance of the right of free speech” Because The Words Com- plained Of Here Can Never Be Free, Unless They are True. The anti-SLAPP statute has, as its primary purpose, the protection of those who seek to utilize the Court system for redress of grievances on matters of public concern. First, and of primary importance, is that the words spoken here were not and cannot be “free.” Language has restrictors in a society of laws. As stated by Mr. Justice Holmes, citing Aikens v. Wisconsin, 195 U.S. 194, 25 S. Ct. 3, 49 L. Ed. 154 (1904),1 “[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing panic.” Schenck v. United States, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 (1919). The key word in the above-quoted language is “falsely.” This simple mandate has been followed consistently, as it should. Former Chief Judge Henderson of the United States District Court for the Northern District of Georgia, in upholding the constitutionality of Ga.

1 An act, which in itself is merely a voluntary muscle con- traction, derives all its character from the consequences that will follow it under the circumstances in which it was done. When the acts consist of making a combination calculated to cause temporal damage, the power to punish such acts, when done maliciously, cannot be denied because they are to be followed and worked out by conduct that might have been lawful if not preceded by the acts. No conduct has such an absolute privilege as to justify all possible schemes of which it may be a part.” Aikens, 195 U.S. at 206. App. 94

Code Ann.§ 26-1307 in Masson v. Slaton, 320 F. Supp. 669 (N.D. Ga. 1970), wrote “[t]he right to free speech is not an unlimited right”; indeed it is not and the present Defendants’ words far exceeded any rational barrier. [16] (Court of Appeals R. 317.) Here, though, the lower Courts’ rulings provided an absolute privilege to whatever speech is utilized if it is spoken after filing a lawsuit. New York has such a privilege; Georgia does not. “Proof that the defendant acted with actual malice in making the statement . . . defeats the defense of privilege.” Rabun v. McCoy, 273 Ga. App. 311, 615 S.E. 2d 131(2005). Since New Yorkers appear to enjoy such an un- bridled “right” to say whatever they want in the broad context of a lawsuit, the Defendants here may have felt completely free to disregard the truth, speak in extreme and unwarranted false terms, and with reckless disregard for the truth. There is an exception to the words used here is that prohibition and that exception is “truth” not anti-SLAPP. This Court discussed speech in Cunningham v. State, 260 Ga. 827,828, 400 S.E. 2d 916 (1991), holding that “the curtailment of certain categories of speech does not raise constitutional problems provided the statutes regulating them are narrowly drawn. Among these categories are ‘the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words – those which by their very utterance inflict injury . . . ” id. (citing Chaplinksy v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942)). (Court of Appeals R. 282, 283, 285, 287.) App. 95

To call a family who are not killers, “killers” is a perfect example of speech that should be and rightfully is, in a society of laws, curtailed. The interposition of a verification requirement elevates that verification requirement over all the [17] precedential First Amendment balancing decisions concerning the United States Constitution or the Georgia Constitu- tion. Certain rights exist under both First Amend- ments, but those rights are not absolute which explains why courts have historically balanced rights and responsibilities. Here there is no curtailing statute; but if libel and slander are in the nature of speech subject to curtailment, then they are simply not free. And if not free, how then can the libelous be “arguably in furtherance of the right of free speech.” O.C.G.A. § 9-11- 11.1 (emphasis added). The right of free speech is not absolute at all times and under all circumstances, Evans v. State, 188 Ga. App. 347, 373 S.E. 2d 52 (1988). (Court of Appeals R. 282, 283, 285, 287.) “Libel is an abuse of the liberty of press for which laws of state hold the press answerable in damages.” McGill v. State, 209 Ga. 500, 74 S.E. 2d 78 (1953). This Court should be aware that each of these arguments has been made multiple times in the lower courts to no avail. They have been ignored, and in an instance or two, not even given passing reference. The Courts below have also overlooked and disregarded the intent of the New York Defendants. Their intent was to disseminate these slanderous App. 96 remarks nationwide, and they did so. Their intent was not simply to announce a lawsuit. The inflamma- tory nature of their words was calculated. The effect was as they intended; and that was to damage the Plaintiffs as dramatically as they could. [18] The announcement was made in New York City’s “Blue Room,” a room that is electronically connected to media outlets all over the nation. This was not directed at New Yorkers only. The intent, indeed the very real purpose, was to denigrate those who Defendant Bloomberg had targeted, as thoroughly as it is possible to denigrate. There were no qualifiers in the words utilized. There were no “We believe,” “We have alleged,” or “The allegations are . . . ” What was said in that setting was a per se announcement of conviction of unconvicted people, just as clearly as any district attorney or U.S. Attorney announces a jury’s findings on the courthouse steps. These New York Defendants are not Defendants intended to be protected by our state’s narrowly- crafted anti-SLAPP statute; they cannot be permitted to hide behind the technical verification requirements in anti-SLAPP when the words they employed were not protected speech. Slander per se never falls into a category of protected speech, and is not thereby intended to be reached by Georgia’s anti-SLAPP statue, O.C.G.A. § 9-11-11.1. Furthermore, one of the statute’s primary purposes is to establish a reasonable condition precedent to avoid frivolous and abusive litigation. Nothing App. 97

here, in the Complaint filed by the Plaintiffs, is frivolous or abusive. Here this Complaint has no even remotely arguable chilling effect on the exercise of the New Yorkers’ free speech. Instead, it seeks redress as against prohibited speech. The [19] circumstance of where the words were spoken, appears to have created a trap into which the courts below have fallen; and out of which this Court must rescue them. (Court of Appeals R. 287.) (June 15, 2009 Hearing T. 9, 10.) The locus of the words spoken “contemporaneous with the filing of a lawsuit” became – erroneously – the only consideration below in determining whether anti-SLAPP applied. If the First Amendment right to freedom of the press does not create absolute immunity for all words uttered, then neither can anti-SLAPP in Georgia. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d. 789 (1974). Gertz is substantially parallel to this case.

III. There Is A Reason The Legislature Interlocked O.C.G.A. § 9-11-11.1 And O.C.G.A. § 51-5-7(4) And The Decisions By The Courts Below Ren- dered Those Interlocking Provisions A Legal Nullity. The Georgia Legislature interlocked the provisions contained in O.C.G.A. §§9-11-11.1 and 51-5-7(4). The purpose of this explicit inter-connection could only be to add another predicate to the application of anti-SLAPP, delineating lawsuits to which anti-SLAPP App. 98 applies, and those to which its mandates do not apply. It placed a burden on the speech of putative Defen- dants. At the outset, the statements must be made in “good faith.” There was no real investigation to [20] determine if the Wallaces or Adventure Outdoors posed a threat to the safety of New Yorkers. The New York Defendants had nothing more than an inade- quate, fake “Straw Purchase” and 21 firearms over a four-year period, at one time connected with a lawful business in Smyrna, Georgia. That business had sold in excess of 42,000 firearms over that same period. In an earlier Brief, Petitioners suggested that a single telephone call to the Special Agent in Charge of the New York office of the ATF would have uncovered the fact of extensive cooperation by Adventure Outdoors with ATF in the interdiction of illegal firearms in the Northern District of Georgia. The New York Defen- dants simply did not care about such reasonable and/or careful analysis before speaking. All privileges enumerated in O.C.G.A. § 51-5-7 are conditional privileges. Lamb v. Fedderwitz, 68 Ga. App. 233, 22 S.E. 2d 657 (1942). The “good faith” condition is a mandated predicate to O.C.G.A. § 51-5- 7(4). A willful falsehood can never be uttered in “good faith.” Holmes v. Clisby, 121 Ga. 241, 48 S.E. 2d 934 (1904). Where, as here, language is actionable per se (O.C.G.A. § 51-5-4) there must be, at minimum, a “good faith” determination. As previously referenced, the trial court, had it followed the mandates of Harkins, supra., could have taken evidence, and made an appropriate ruling App. 99 concerning the question of the “good faith” conduct of the New York Defendants [21] It is clear that “good faith” is an issue, because without it the interlocking statutes (O.C.G.A. §§ 9-11-11.1 and 51-5-7(4) would have no meaning. Respectfully, all the provisions of the code that have been ignored or glossed over because of the finding in favor of the verification predicate are incomprehensible to Petitioners. In sum, those are the Harkins inquiry which has not been undertaken to date; the O.C.G.A. § 51-5-4 consideration, as yet undone; and the analysis of the import of the legislative act of “interlocking,” not examined or reasoned in any decision below. These all are reasons the decisions of the Courts below are of extreme importance for the Supreme Court to consider.

IV. The Practical Effect of the Rulings Below Make the Verification Requirement a Mandated Re- quirement in All Defamation Matters and Caused that Requirement Improperly to Sup- plant O.C.G.A. § 51-5-4. Defamation per se, given the findings below, no longer stands as a protection against malicious falsehoods. Indeed, it would appear that, in the event speakers, laced with malice and combined together with planned falsehoods, need only to simply file a lawsuit, then such an act creates a license to defame. It is essential to remember that it is not the intention of legislation to protect this class of people engaging in the spreading of injurious falsehoods. “Malicious App. 100 libel enjoys no constitutional protection in any context” Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53, 86 S. Ct. 657, 15 L. Ed. 2d 582 (1966). [22] “Obscene speech, fighting words, clear and present danger speech, and defaming and libelous speech can, consistent with the First Amendment, be regulated because of their constitutionally pro- scribable content.” The false and malicious defamatory accusations of the Defendants here clearly exemplify the type of content that is not constitutionally protected. The constitution does not aim to protect speech of a defamatory nature and to do so would be counteractive to the law.

V. The Rulings Below Violate the Fundamental Rules of Statutory Construction In Concluding Georgia’s Anti-SLAPP Statute Applies More Broadly than its Terms. The Defendants contest the position that the anti-SLAPP statute is specifically limited to Georgia citizens by its precise language. If it is limited to citizens of Georgia it cannot be a prophylactic mecha- nism for Messrs. Bloomberg, Cardozo, Feinblatt, Kelly or Mintz, who have disingenuously disavowed all contact with Georgia (in Affidavits filed in the United States District Court portion of this action). There is one immutable truth – that not a single one of them is a citizen of Georgia. It is of primary importance that Courts cannot re-write the plain, unambiguous language of a statute. The United States Supreme Court has so ruled; the Georgia Supreme App. 101

Court has so ruled; the Georgia Court of Appeals has so ruled; and the 11th Circuit has so ruled. “In construing a statute we must begin, [23] and very often should end as well, with the language of the statute itself.” See, Good Samaritan Hosp. v. Shalala, 502 U.S. 402, 409, 113 S. Ct. 2151, 2157, 124 L. Ed. 2d 368 (1993). “We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Connecticut National Bank v. Germain, 503 U.S. 249, 253, 112 S. Ct. 1146, 1149, 117 L. Ed. 2d 391(1992). In Etkind v. Suarez, 271 Ga. 352; 519 S.E. 2d 210 (1999) in a “wrongful birth” allegation (the recovery for which had not been fashioned by the Georgia legislature) the Court said, “ . . . the doctrine of separation of powers is an immutable constitutional principle which must be strictly enforced.” McCutcheon v. Smith, 199 Ga. 685, 691 (2), 35 S.E. 2d 144 (1945). Under the above said doctrine, statutory “construction belongs to the Courts, legislation to the legislature.” “We cannot add a line to the law, nor can the legislature enlarge or diminish law by construction.” ‘[Cits.]” Modern Homes Construction Co. v. Burke, 219 Ga. 710, 715, 135 S.E. 2d 383 (1964). The Georgia Court of Appeals in a tort claims case, Department of Human Resources v. Coley, et al., 247 Ga. App. 392; 544 S.E. 2d 165 (2000) said, “our job is to read the statute, not to rewrite it to conform to an equitable result.” The 11th Circuit, in a Prison Litigation Reform Act case (42 U.S.C.S. § 1997e (e)) requiring, for prisoners’ App. 102 claims, exhaustion of administrative remedies, the status of the claimants was specifically addressed. Judge Carnes, for the [24] Circuit, wrote: “We begin our construction of § 1997e(e) where courts should always begin the process of legislative interpretation, and where they often should end it as well, which is the words of the statutory provision.” See, United States v. Gilbert, 198 F.3d 1293, 1298 (11th Cir. 1999) (citing United States v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998) (en banc) (“In construing a statute we must begin, and often should end as well, with the language of the statute itself.”) (citations omitted); see also, Connecticut National Bank v. Germain, 503 U.S. 249, 253-254, 112 S. Ct. 1146, 117 L Ed 2d 391 (1992). (“In interpreting a statute a court should always turn first to one, cardinal canon before all others,” which is “that courts must presume that a legislature says in a statute what it means in a statute what it says there;” and “when the words of a statute are unambiguous then, this first canon is also the last: judicial inquiry is complete.”) (citations and marks omitted).” Earlier in this litigation the Defendants raised the issue that the Privileges and Immunities clause of the Constitution would be violated if the Court were to find the statute’s prophylactic provisions to be limited to Georgia citizens; the “Georgia Citizen” language of 9-11-11.1 is merely a preamble, they argued. Such tactic and assertion is patently inappro- priate and misplaced. There are statutes that define explicit policy decisions of a state. The anti-SLAPP App. 103 statute is such a statute; the legislature determined its provisions were to apply to Georgia citizens only. In [25] a case involving an allegation of violation of the Georgia Habitual Violator Statute, the Georgia Court of Appeals would not allow the assessment of points to a Texas driver (because the scope of the legislative intent forbade it). See: In re Interest of R.G., 246 Ga. App. 276, 612 S.E. 2d 94 (2005). The point being that in O.C.G.A. § 40-5-57 paragraph (a), the legislature acknowledged the interest of Georgia citizens and enacted a statute limited to them. The Georgia driver can be summarily suspended, but the Texas driver cannot. When read in parallel to the Paragraph (a) of anti-SLAPP, there are distinctive similarities. Respectfully, such statutes reinforce the proposition that legislation can be legitimately directed toward and limited to a state’s citizens. Regulation is absolutely appropriate regarding access (and thereby jurisdiction) to a particular court or courts. The Constitution’s Privileges and Immunities Clause does not prohibit difference in treatment, just that there be a rational and reasonable basis for it. Access by Georgia’s ordinary citizens to Georgia courts on matters important to Georgians without fear of reprisal from those more powerful is. A synopsis of O.C.G.A § 9-11-11.1 was provided by the Georgia legislature at the time the anti-SLAPP App. 104 statue was passed.2 (See: 1996 Ga. ALS 616; 1996 Ga. [26] Act 616; 1995 Ga. SB 1). In regard to the Defend- ants’ arguments, (made, as stated, throughout this lengthy litigation) that synopsis is the preamble, not Paragraph (a). O.C.G.A. § 9-11-11.1(a) is not the preamble to the statute, it is an operative part of the statute itself; it is a section of the statute itself; the synopsis of the act by the legislature referenced above is the “preamble.” By reference to the plain meaning

2 A BILL TO BE ENTITLED AN ACT To amend Chapter 11 of Title 9 of the Official Code of Georgia Annotated, relating to the “Georgia Civil Practice Act,” so as to encourage continued participation by the citizens of Georgia in matters of public significance; to encourage the valid exercise of the constitutional rights of freedom of speech and the right to petition government for a redress of grievances; to provide legislative findings; to require certification that a pleading asserting a claim arising from an act reasonably construed by the actor as an act in furtherance of the right of free speech or to petition government for a redress of grievances is well grounded in fact and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, is not filed for an improper purpose, and that the act forming the basis for the claim is not privileged; to provide for striking a claim without such certification; to provide for exceptions; to provide for sanctions for violations; to provide for definitions; to provide for stays and exceptions; to amend Chapter 5 of Title 51 of the Official Code of Georgia Annotated, relating to libel and slander, so as to provide that statements made in furtherance of a person’s right to free speech or to petition government for a redress of grievances in connection with an issue of public interest are privileged communications; to provide for editorial changes; to provide for other matters relative to the foregoing; to provide an effec- tive date; to repeal conflicting laws; and for other purposes. (Emphasis Added) App. 105 of the statute, it is clear that anti-SLAPP is limited to Georgia citizens, though the Supreme Court has never ruled – or felt the need to rule – on this question. This proposition is supported by prior decisions. In National Wildlife Federation, et al. v. Marsh, 721 F.2d 767, 774 (11th Cir. 1983) (citing North Dakota v. United States, 460 U.S. 300, 103 S. Ct. 1095, 75 L. Ed. 2d 77 (1983) which held “when faced with an issue of statutory interpretation, absent a clearly [27] expressed legislative intention to the contrary the statutory language must ordinarily be regarded as conclusive.” Thus, because the legislature specifically provided in the language of the statute that it is for the benefit of Georgia citizens, and allowed so, an interpretation to the contrary would be in error. The Court of Appeals attempted to make sense of the statute by refusing to acknowledge its clear language and did so erroneously.

VI. This is a Statute (O.C.G.A. § 9-11-11.1) Which, Though no Georgia Court has ever So-Stated, is About Little People or Entities Versus Pow- erful People or Entities; it is About “David Ver- sus Goliath” and the Court of Appeals Failed to Acknowledge that Principle and that Failure is Error. Only one Court that Petitioners have found to date has ever in the majority opinion actually used the term “David versus Goliath.” That Court was the United States District Court for the District of App. 106

Massachusetts in Stuborn v. Frederick L. Bernstein and Iris Bernstein, 245 F. Supp. 2d 312 (D. Mass. 2003). However, in dissent, Mr. Justice White also used the term in Gertz v. Welch, 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974). Gertz, however, stands for much more. Gertz adopts the rationale that protection of a private individual against defamation is of a profound interest to society. Therefore, it holds, when a private individual is defamed, there should be no artificial impediment to obtaining recovery. Ulti- mately Gertz reconciled the struggle between the First Amendment and [28] defamation as against a private individual by holding that it is the State that defines for itself the liability for publication of defamatory falsehoods which injure a private individual. Id. at 3010. The State of Georgia has done so explicitly in the language of O.C.G.A. § 51-5-4, outlining slander per se. Hence, the Verification requirement should not be allowed to obstruct Adventure Outdoors’ or the Wallaces’ claim at hand. These are private citizens who were defamed by actions of state actors. Anti- SLAPP is intended to protect those who are like the Plaintiffs here, not to punish them.

CONCLUSION Much has been made by Defendants in this Action concerning the Plaintiffs’ alleged refusal to file the verification set forth in O.C.G.A. 9-11-11.1. At one point there were comments regarding how only courts can make such decisions. Plaintiffs respect the role of all courts, but occasionally there is error. Plaintiffs App. 107 assert that what happened here was precisely that, error. By interpreting slander per se as “arguably in furtherance of the right of free speech,” Plaintiffs strongly argue that the courts below ruled in error. This set of rulings creates a circumstance of an absolute right to defame in Georgia at any time when a lawsuit is filed. It also mandates that a verification be filed pursuant to O.C.G.A. § 9-11-11.1 at any moment that the speech, regardless of content, is made after a lawsuit’s filing. [29] Plaintiffs believe that is not the law and ask this Court to so conclude and find, and grant this Petition For Certiorari. Respectfully submitted, /s/ Bob Barr /s/ Ed Marger Bob Barr Edwin Marger by BB Georgia Bar No. 03947 with express permission Georgia Bar No. 470400

Attorneys for Petitioners Law Offices of Edwin Marger, LLC 44 North Main Street Jasper, Georgia 30143 706-253-3060 [Certificate Of Service Omitted In Printing]

App. 108

IN THE SUPREME COURT OF THE STATE OF GEORGIA

MOTION FOR RECONSIDERATION OF THE DENIAL OF CERTIORARI (Filed May 26, 2011) [ii] Table of Contents MOTION FOR RECONSIDERATION OF THE DENIAL OF CERTIORARI ...... i Table of Authorities ...... iii ARGUMENT ...... 2 CERTIFICATE OF SERVICE ...... 13

[iii] Table of Authorities Cases Aikens v.Wisconsin, 195 U.S. 194, 25 S. Ct. 3, 49 L. Ed. 154 (1904) ...... 2 Atlanta Humane Society v. Harkins, 278 Ga. 451 (2004) ...... 7 Berryhill v. Georgia Community Support and Solutions, 281 Ga. 439 (2006) ...... 7 Georgia Community Support & Solutions, Inc. v. Berryhill, 275 Ga. App. 189 (2005) ...... 6 Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d. 789 (1974) ...... 10 Masson v. Slaton, 320 F.Supp. 669 (1970) ...... 6 New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710 (1964) ...... 3 Schenck v. United States, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 (1919) ...... 2 Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 ...... 3 App. 110

Statutes Ga. Code Ann.§ 26-1307 ...... 5 O.C.G.A. § 51-5-4 ...... 1, 9 O.C.G.A. § 51-5-7(4) ...... 1, 4, 8 O.C.G.A. § 9-11-11.1 ...... passim

Other Authorities Court of Appeals R. 287 ...... 9 June 15, 2009 Hearing T. 9, 10 ...... 9 [1] COME NOW the Appellants in the above-styled cause and respectfully move this Court for reconsideration of its decision denying Certiorari. Appel- lants state respectfully that the decision denying Certiorari was in error. The effect of that decision is to elevate the technical verification requirement contained in Georgia’s Anti-SLAPP statute, O.C.G.A. § 9-11-11.1, to a position superior to the First Amend- ment to the Constitution of the United States and the First Amendment to the Constitution of the State of Georgia. The decision effectively makes all “speech” protected speech. The decision ignores the nature, the intent and the substance of the speech, and focuses solely on its setting. The decision ignores the fact that the Appellants here were “private” citizens and not “public” personages. The decision ignores and effectively decimates the “good faith” requirement of O.C.G.A. § 51-5-7(4), the law in Georgia defining “privileged communications” in the context of Anti- SLAPP. Finally, the decision obviates the effect of App. 111

O.C.G.A. § 51-5-4, which defines “slander” per se under Georgia law.

[2] ARGUMENT This Court did not write an opinion concerning its denial of Certiorari and thus the Appellants are left to some speculation as to its basis. It appears one of two possible conclusions formed the basis for this Court’s denial of Certiorari. First, this Court may have determined the speech herein was “protected speech” within the meanings of the First Amendment to the Constitution of the United States and the First Amendment to the Georgia Constitution. If this was in fact the founda- tion of the court’s action, then it would be further construed that the actions engaged in by the New York Appellees-Defendants could “reasonably be construed as an act in furtherance of the right of free speech” – one element of the Anti-SLAPP requirements. If this Honorable Court made such a determination, then it has failed to consider United States Supreme Court precedent concerning speech which may be legitimately regulated. First, and of over-arching importance, is that the words spoken here by the New York Appellees were not and cannot be “free,” as was argued in the original Petition For Certiorari. Appellants seek from this Court a revisiting of the area of [3] law of what speech is “free” and what speech is not “free”; for there is a difference. In fact, this is a vital distinction App. 112

which cannot and should not be cast aside in favor of the technicality of the Georgia Anti-SLAPP statute. Language has restrictors in a society of laws. As stated by Mr. Justice Holmes, citing Aikens v. Wisconsin, 195 U.S. 194, 25 S. Ct. 3, 49 L. Ed. 154 (1904), “[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing panic.” Schenck v. United States, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 (1919). The key word in the above-quoted language is “falsely.” The key consideration for this Court is whether the words spoken were protected speech. Therefore, Appellants seek from this Court a revisitation of the concept of a legitimate circumspection of the right of “reasonable free speech.” If the basis of this Court’s decision to deny Certiorari is that the speech in question was “reasonably to be construed in furtherance of the right of free speech,” then this Court, Appellants say respectfully, has erred and has applied the statute O.C.G.A. § 9-11-11.1 unconstitutionally by its interpretation of that aforementioned phrase. The United States Supreme Court in the landmark case of New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710 (1964) addressed the role of the courts in a free speech context (while addressing the different responsibilities of correctness in [4] a public/private set of considerations; recall that the Appellants-Plaintiffs Wallaces and Adventure Out- doors are not “public persons” as therein defined). “This Court’s duty is not limited to the elaboration of constitutional principles; we App. 113

must also in proper cases review the evidence to make certain that those principles have been constitutionally applied. This is such a case, particularly since the question is one of alleged trespass across ‘the line between speech unconditionally guaranteed and speech which may be legitimately regulated.” ’ Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460. The speech in question here cannot be countenanced regardless the setting and should be legitimately regulated. There is a second very real possibility as to the basis on which this Honorable Court denied Certio- rari; that is, the Court relied on the disjunctive “or” in the Anti-SLAPP statute which appears to provide a blanket protection when the speech is concerning “the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern.” O.C.G.A. 9-11-11.1 While this might be the core of the matter, public statements are possessed of [5] carefully defined privileges (even when on matters of public interest or concern), as do these before this Court. They are controlled by O.C.G.A. § 51-5-7(4), the interlocking provision of O.C.G.A. § 9-11-11.1, and therefore the statements must be made in “good faith” in order to be protected by the Anti-SLAPP statute’s provisions. There is no evidence in this record that the said statements were made in “good faith”; and at a App. 114 minimum, this key issue must be subject to evidentiary determination by the trial court. The net effect of this denial of Certiorari is to protect Mayor Bloomberg and his co-defendants even if he and they were to be in the Courthouse lobby after filing a lawsuit and he or they falsely yelled “fire in the courthouse.” Such a false statement is analo- gous and parallel to what actually occurred here on May 15, 2006 (i.e., false and reckless statements uttered and subsequently published against Appellants- Plaintiffs). To allow such statements or to interpose the verification requirement of Anti-SLAPP to protect them, ignores the First Amendments and their legitimate proscriptions. Such holding would be contrary to well-developed First Amendment law; and Appel- lants respectfully assert that the verification requirement of Anti-SLAPP would also not be required when the “fire in the courthouse” statement was shouted. There is little difference between the [6] courthouse hypothetical and what happened here. The key consideration is whether the words were false and whether under any circumstance, including Anti-SLAPP, there can be a lawful justification or a concomitant interposition of the need for a verification. It is respectfully asserted, it is the words that are at issue, not the podium from which they were spoken. No one disagrees that there could be a lawsuit or its announcement by the New York Appellees, but the First Amendment has limitations which were violated here. If this Court’s denial of Certiorari is based upon the disjunctive following phrase in the App. 115

statute, then the statute itself, as here interpreted, is unconstitutional. This simple mandate has been followed consistently, as it should. Former Chief Judge Henderson of the United States District Court for the Northern District of Georgia, in upholding the constitutionality of Ga. Code Ann.§ 26-1307 in Masson v. Slaton, 320 F. Supp. 669 (N.D. Ga. 1970), wrote “The right to free speech is not an unlimited right”; indeed it is not, and the present Defendants’ words far exceeded any rational barrier. This matter is solely about the interpretation of the statutory phrase “reasonably be construed as an act in furtherance of the right of free speech.” O.C.G.A.§9-11-11.1. The speech was false; it was defamation per se; the statements were made with a reckless disregard [7] for the truth; they were not made in “good faith”; and they were not able to be “reasonably be construed in furtherance of the right of free speech.” Their utterers, therefore, should not be able to hide behind misapplication of Georgia’s Anti-SLAPP statute. O.C.G.A. § 9-11-11.1 is at once both procedural and substantive in nature; and Appellants respectfully show that all analysis to date in this case has focused on the procedural; and, virtually unnoticed has been the substantive facets of the statute. Appel- lants believe that the Court did not adequately take into account either the Harkins or the Berryhill decisions. App. 116

In Georgia Community Support & Solutions, Inc. v. Berryhill, 275 Ga. App. 189 (2005) the Court of Appeals conducted a substantive analysis and ruled that the statements were within the statute, but were not made in the proper context. Subsequently, this Court in Berryhill v. Georgia Community Support and Solutions, 281 Ga. 439 (2006), in affirming, offered a statutory analysis while affirming; Mr. Justice Carley writing for the majority at 441. “Courts should give a sensible and intelligent effect to every part of a statute and not render any language superfluous.” (Justice Carley included other citations of authority for this quote). [8] In this case it is conceded there was evidence of an official proceeding (the announcement of a lawsuit). When reading the statute in a manner, such as to give “a sensible and intelligent effect,” as noted by Justice Carley, the words “reasonably be construed in furtherance of the right of free speech” must be given that same “sensible and intelligent effect.” That analysis must take in the nature of the words and not merely the location. Appellants believe neither this Court nor any of the subordinate Courts have conducted the required substantive analysis so as to encompass the words and not merely the location. In Atlanta Humane Society v. Harkins, 278 Ga. 451 (2004), this Court conducted precisely the analysis Appellants seek here. In that opinion, The Court in the first place held, there must be a threshold finding (which Appellants insist is the fundamental predicate

App. 117 before Anti-SLAPP is ever implicated on these facts) that Anti-SLAPP applies. The Court also held, sec- ondly, there must be a substantive evidentiary determination that: “(a) the claimant or his attorney did not reasonably believe that the claim was well grounded in fact and that it was warranted by existing law or a good faith argument for modification of existing law, (b) the claim was interposed for an improper purpose, or (c) the defendant’s statements were privileged pursuant to O.C.G.A. § 51-5-7(4).” That provision has a “good faith” predicate. [] [9] Clearly, the attorneys here on behalf of Plaintiffs-Appellants, on these facts, believed the claim was well-founded. There was no improper purpose ever illuminated or asserted effectively. The statements by Defendants-Appellees were not “privileged” because they were not made in “good faith” and there is no evidence in the record to support a “good faith” finding. There is also no evidence in this record to support the position that any of the substantive prerequisites for application of Anti-SLAPP have been met. The required fact-finding has been improperly short-circuited.

App. 118

Furthermore, one of the statute’s primary purposes is to establish a reasonable condition precedent to avoid frivolous and abusive litigation. Nothing here, in the Complaint filed by the Plaintiffs, is frivolous or abusive. Here, the Complaint has no even remotely arguable chilling effect on the exercise of the New Yorkers’ free speech. Instead, it seeks redress as against prohibited speech. The circumstance of where the words were spoken, appears to have created a trap into which the courts below have fallen; and out of which Appellants respectfully [10] believe this Court should rescue them. (Court of Appeals R. 287.) (June 15, 2009 Hearing T. 9, 10.) These New York Defendants are not Defendants intended to be protected by our state’s narrowly- crafted Anti-SLAPP statute; they cannot be permitted to hide behind the technical verification requirements in Anti-SLAPP when the words they employed were not protected speech. Slander per se never falls into a category of protected speech (O.C.G.A. § 51-5-4), and is not intended to be reached by Georgia’s anti- SLAPP statue [sic], O.C.G.A. § 9-11-11.1. The locus of the words spoken, “contemporaneous with the filing of a lawsuit,” became – erroneously – the only consideration below in determining whether anti-SLAPP applied and apparently this Court, at first blush, agreed. If the First Amendment right to freedom of the press (a right substantially more broadly recognized

App. 119 than the right to defame when announcing a lawsuit) does not create absolute immunity for all words uttered, then a fortiori neither can Anti-SLAPP in Georgia do so. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d. 789 (1974). The holding in Gertz should be substantial [11] precedent to consider in this case as it involves recognized First Amendment protection analysis and is not merely a state statute regarding policy. The analysis simply does not change. The words in the statute “reasonably be construed as in furtherance of the right of free speech” place a predicate that the speech be of a nature so as to be capable of being determined to be “free.” The disjunctive “or” doesn’t change that, and, if it does, then the statute is unconstitutional as a violation of the First Amendment to both the United States and Georgia Constitutions. Respectfully, either the denial of Certiorari was based on an unconstitutional application of O.C.G.A. § 9-11- 11.1, or the statute as written is unconstitutional in that the First Amendment must always be considered and followed. WHEREFORE, it is respectfully requested that the Motion for Reconsideration be filed pursuant to Rule 27 of the Rules of the Supreme Court of the State of Georgia, that this Honorable Court reconsid- er its denial of Certiorari, grant Certiorari, and grant a briefing schedule on the important issues contained

App. 120 herein and grant oral argument and reverse the rulings of the lower Courts. Respectfully submitted, /s/ Bob Barr /s/ Ed Marger Bob Barr Edwin Marger by BB Georgia Bar No. 03947 with express permission Georgia Bar No. 470400

Attorneys for Petitioners Law Offices of Edwin Marger, LLC 44 North Main Street Jasper, Georgia 30143 706-253-3060 [Certificate Of Service Omitted In Printing]