No. 23-1532

DANA CHENG; EPOCH GROUP INC., d/b/a Epoch Media Group,

Plaintiffs, Appellees,

v.

DAN NEUMANN; MAINE PEOPLE'S ALLIANCE, d/b/a Beacon,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. Lance E. Walker, U.S. District Judge]

Before

Montecalvo, Lynch, and Rikelman, Circuit Judges.

John-Mark Turner, with whom Christopher Cole, Cassandra O. Rodgers, and Sheehan, Phinney, Bass & Green, P.A. were on brief, for appellants.

Christopher J. Bakes, with whom Kip Joseph Adams, Bryan Paul Sugar, Lann G. McIntyre, and Lewis Brisbois Bisgaard & Smith LLP were on brief, for appellees.

June 25, 2024 RIKELMAN, Circuit Judge. In 2021, a Maine news outlet, Beacon, ran an article about New York resident and political commentator Dana Cheng that characterized Cheng as "far-right" and a "conspiracy theorist." Cheng sued the article's author, Dan Neumann, and Beacon for defamation in federal court in Maine. Neumann and Beacon then sought dismissal of the case under both federal law and a New York anti-SLAPP1 law that applies to meritless defamation lawsuits. Faced with dueling arguments by the parties about whether Maine or New York law applied to Cheng's defamation claim, the district court conducted a choice-of-law analysis, decided that New York law applied, and granted the motion to dismiss under New York's anti-SLAPP statute. On Cheng's appeal, we agreed with the district court's ruling but for a different reason: We decided that Cheng's lawsuit had to be dismissed under binding First Amendment principles protecting free speech by the press.

Back at the district court, Neumann requested attorneys' fees under the fee-shifting provision of New York's anti-SLAPP law. Faced with yet another choice-of-law dispute, the district court denied Neumann's request after determining that Maine, not New York, law applied to the specific issue of attorneys' fees. Now Neumann appeals, arguing that the district court erred in its

1SLAPP stands for "strategic lawsuit against public participation."

- 2 - choice-of-law analysis. Although we note the district court's careful analysis below, we certify to the Supreme Judicial Court of Maine (the "Law Court") the question of which state's law applies because there is no clear controlling precedent on point and the choice-of-law analysis is determinative of the attorneys' fees issue.

I. BACKGROUND

We draw the relevant facts from our prior decision in Cheng v. Neumann ("Cheng I"), 51 F.4th 438 (1st Cir. 2022), which describes the parties' dispute about the Beacon article in more detail.

Dana Cheng is a New York resident and the vice president and co-founder of The Epoch Times, a newspaper published by the New York-based Epoch Group. In June 2021, Cheng spoke at an event co-sponsored by the Maine Republican Party in Windham, Maine. A few weeks later, Beacon ran an article about the event titled "Maine GOP hosts speaker present at Jan. 6 Capitol assault." The article described Cheng's own statements about her presence during the attack on the U.S. Capitol on January 6th, 2021, and referred to Cheng as "far-right," "right-wing," and a "conspiracy theorist."

Cheng and the Epoch Group (together, "Cheng") sued Neumann and the Maine People's Alliance (together, "Neumann"), which publishes Beacon, for defamation in federal district court

- 3 - in Maine under diversity jurisdiction. Neumann moved to dismiss the complaint