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Intercon Solutions, Inc. v. Basel Action Network

United States District Court, N.D. Illinois

August 28, 2013

INTERCON SOLUTIONS, INC., Plaintiff,
v.
BASEL ACTION NETWORK and JAMES PUCKETT, Defendants

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For Intercon Solutions, Inc., a California corporation, authorized to do business in Illinois, Plaintiff, Counter Defendant: Paul Ely Starkman, Pedersen & Houpt, P.C., Chicago, IL; Svetlana Zavin, Pedersen & Houpt, Chicago, IL.

For Basel Action Network, a Washington non-profit corporation, James Pukett, an individual, Defendants, Counter Claimants: George Carter Lombardi, LEAD ATTORNEY, Brendan Francis Barker, Christopher B Essig, Winston & Strawn LLP, Chicago, IL; John Wentworth Phillips, PRO HAC VICE, Phillips Law Group, Pllc, Seattle, WA.

OPINION

Virginia M. Kendall, United States District Court Judge.

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MEMORANDUM OPINION AND ORDER

Plaintiff Intercon Solutions, Inc. is a California-based provider of e-recycling services that operates an e-recycling facility in Illinois. Defendant Basel Action Network (" BAN" ) is a non-profit Seattle-based corporation that certifies businesses that provide e-recycling services. Intercon alleges that BAN and its founder and Executive Director, James Puckett (" Puckett" ) defamed and placed Intercon in a false light by falsely and publicly accusing it of shipping hazardous e-Waste to China and Hong Kong. In addition to its defamation and false light claims, Intercon seeks an injunction restraining the Defendants from: (1) disseminating Intercon's confidential information; (2) stating that Intercon engages in illegal and unethical business practices; and (3) stating that Intercon was in possession of and shipped hazardous waste to China and Hong Kong. Defendants raise various affirmative defenses in their Amended Answer to Intercon's Complaint, including lack of personal jurisdiction, improper venue, unclean hands, and substantial truth. Defendants also assert that Intercon's Complaint is barred by Illinois and Washington anti-SLAPP (" Strategic Lawsuits Against Public Participation" ) provisions and the First Amendment of the United States Constitution under the Noerr-Pennington doctrine. BAN has filed a Counterclaim seeking a declaration pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, that Intercon exports waste to China contrary

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to its representations to the public and that BAN's decision to deny e-Stewards certification to Intercon Solutions was justified.

The following Motions are before the Court: (1) Defendants' Motion to Dismiss Intercon's Complaint pursuant to the Washington Anti-SLAPP Act, RCW 4.24.510; (2) Defendants' Special Motion to Strike Intercon's claims, also pursuant to the Washington Anti-SLAPP Act, RCW 4.24.525; (3) Defendants' Motion for Judgment on the Pleadings pursuant to Federal Rule of Civil Procedure 12(c); (4) Intercon's Motion to Dismiss, or in the alternative, Strike Defendants' affirmative defenses of improper venue, lack of personal jurisdiction, and unclean hands; and (5) Intercon's Motion to Strike and/or Dismiss BAN's Counterclaim. For the reasons stated herein, Defendants' Special Motion to Strike pursuant to RCW 4.24.525 and Motion for Judgment on the Pleadings are denied. Defendants' Motion to Dismiss pursuant to RCW 4.24.510 is granted in part and denied in part. Intercon's Motions to Strike Defendants' First and Second Affirmative Defenses and to Dismiss BAN's Counterclaim are granted. Intercon's Motion to Strike Defendants' Fourth Affirmative Defense is denied.

BACKGROUND

Intercon is a California-based corporation that is in the business of providing electronic recycling (" e-recycling" ) services. (Complaint, ¶ 1.) In the e-recycling business, companies obtain certifications of compliance with certain industry standards upon which some customers rely. ( Id. ) BAN is a non-profit corporation that certifies businesses that provide e-recycling services. ( Id. ¶ 2.) Intercon retained BAN to organize an audit on Intercon's business so that Intercon could obtain e-Stewards certification, a certification offered by BAN to companies that provide e-recycling services. ( Id. ¶ 5.) At the conclusion of its audit, BAN decided not to certify Intercon to the e-Stewards standard. ( Id. ¶ 15.)

Intercon alleges that during the audit, BAN abused its access to confidential information provided by Intercon by engaging in unlawful surveillance of Intercon's premises. ( Id. ¶ 6.) Intercon also alleges that after denying it the e-Stewards certification, BAN went on to state publicly -- and falsely -- that there was substantial evidence that Intercon shipped two containers of illegal and hazardous materials to Hong Kong and China. ( Id. ¶ 7.) According to Intercon, BAN wrongly concluded and made false public accusations that two containers parked on Intercon's premises contained hazardous e-Waste materials, that Intercon owned the supposedly hazardous e-Waste held within the containers, and that Intercon shipped the containers with hazardous material to China and Hong Kong. ( Id. )

Specifically, Intercon alleges that on or about June 28, 2011, James Puckett (" Puckett), the founder and Executive Director of BAN, falsely stated in a letter posted on BAN's website that " there is substantial evidence that during the period of time that Intercon Solutions was contracted to be certified, Intercon Solutions exported hazardous electronic waste to China ... in violation of the e-Stewards Standard for Responsible Recycling and Reuse of Waste." ( Id. ¶ 10.) The letter further states that " there is substantial reason to believe that such exports may violate Public Act 095-0959 ... of the State of Illinois, the Federal CRT Rule, ... as well as the waste importation laws of Hong Kong/China." ( Id. ) Intercon alleges that this letter was sent to selected news media, John Fraser of SAI Global, John Lingelbach of R2 Solutions, and remained accessible on the Internet. ( Id.

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¶ 11.) Intercon also asserts that BAN attached to this letter its purported " Evidentiary Report of Potential e-Stewards Violation" (the " Evidentiary Report" ). ( Id. ¶ 11.) According to Intercon, the Evidentiary Report falsely accuses Intercon of illegally shipping containers containing e-Waste to China and Hong Kong in violation of U.S. and Chinese law. ( Id. ¶ ¶ 12-13.) Intercon alleges that the Evidentiary Report also implies that BAN had evidence and facts to support its accusations against Intercon, when in fact BAN had no such evidence or facts. ( Id. ¶ 12.) The Evidentiary Report, like the letter, was publicized to selected news media, John Fraser, John Lingelbach, and remains readily accessible on the Internet. ( Id. ¶ 14.) Next, Intercon alleges that on or about July 5, 2011, BAN posted on its website, www.ban.org, another defamatory press release falsely stating that that BAN denied Intercon the e-Stewards certification based on " 'compelling evidence' that Intercon had been exporting hazardous waste to China in violation of the United Nation's Basel Convention. ( Id. ¶ 15.) In a subsequent press release, Puckett stated, in what Intercon alleges to be an obvious reference to Intercon, that " [i]t is very sad that many e-Waste recycling companies continue to pose as 'responsible recyclers' while they continue to export toxic waste .... In this case, we can take some satisfaction that our e-Stewards Certification screening methods and audits caught what BAN has every reason to believe is a violator." ( Id. ¶ 16.) Intercon further alleges that BAN issued another press release on August 4, 2011, in which Puckett falsely stated that one of Intercon's containers " was known to contain hazardous waste." ( Id. ¶ 17.)

DISCUSSION

I. Defendants' Anti-SLAPP Defenses

Anti-SLAPP statutes are intended to " address lawsuits brought primarily to chill the valid exercise of the constitutional rights of free speech and petition for redress of grievances." RCW 4.24.525, Note 1(a). " The term 'SLAPP,' which stands for 'Strategic Lawsuit Against Public Participation,' was coined by two professors at the University of Denver, George W. Pring and Penelope Canan, who conducted the seminal study on this type of lawsuit." Sandholm v. Kuecker, 2012 IL 111443, 962 N.E.2d 418, 427, 356 Ill.Dec. 733 (Ill. 2012) (citing George W. Pring and Penelope Canan, " Strategic Lawsuits Against Public Participation" (" SLAPPS" ): An Introduction for Bench, Bar, and Bystanders, 12 Bridgeport L. Rev. 937 (1992)). SLAPPS " masquerade as ordinary lawsuits" and may include myriad causes of action, including defamation, interference with contractual rights or prospective economic advantage, and malicious prosecution. See Kathryn W. Tate, California's Anti-SLAPP Legislation: A Summary of and Commentary on Its Operation and Scope, 33 Loy. L.A. L.Rev. 801, 804-05 (2000). The motive for filing a SLAPP is not to win but rather to chill the defendant's speech or protest activity and discourage opposition by others through delay, expense, and distraction. See John C. Barker, Common-Law and Statutory Solutions to the Problem of SLAPPS, 26 Loy. L.A. L.Rev. 395, 403-05 (1993). By forcing defendants to expend funds on litigation costs and attorney fees, the SLAPP plaintiff's goal of discouraging the defendant's protest activities are achieved through the ancillary effects of the lawsuit, not through an adjudication on the merits. [1]

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See id. at 406. Recognizing that imposing litigation costs rather than winning is a SLAPP plaintiff's primary motivation, several states have enacted " anti-SLAPP" legislation aimed at " provid[ing] for expedited judicial review, summary dismissal, and recovery of attorney fees for the party who has been 'SLAPPED.' " Sandholm, 962 N.E.2d at 428 (citations omitted).

Defendants offer two bases for dismissal pursuant to the Washington's Anti-SLAPP Act (the " Act" ), RCW 4.24.500 et seq. First, Defendants assert they are immune from civil liability pursuant to RCW 4.24.510 because the communications that form the basis of Intercon's claims conveyed information to government agencies and concerned matters reasonably of concern to those agencies. Second, Defendants argue that Intercon's claims against it should be stricken pursuant to RCW 4.24.525 because they arise from Defendants' actions involving public participation and Intercon cannot prove by clear and convincing evidence that it will prevail on its claims. Intercon contends, inter alia, that Illinois, not Washington law applies to BAN and Puckett's defenses in this case. The choice of law issue is a threshold matter the Court must address before engaging in further analysis of Defendants' anti-SLAPP defenses.

A. Washington Law Applies to BAN and Puckett's Anti-SLAPP Defenses

" A district court sitting in diversity applies the choice-of-law rules of the state in which the court sits." Malone v. Corr. Corp. of Am., 553 F.3d 540, 543 (7th Cir. 2009); see also Cook v. Winfrey, 141 F.3d 322, 329 (7th Cir. 1998) (citations omitted). In Illinois, a choice-of-law determination is only necessary when there is a conflict of laws and the difference will affect the outcome of the case. See Townsend v. Sears, Roebuck & Co., 227 Ill.2d 147, 879 N.E.2d 893, 901, 316 Ill.Dec. 505 (Ill. 2007) (" Each issue is to receive separate consideration if it is one which would be resolved differently under the local law rule of two or more of the potentially interested states." ) (quoting Restatement (Second) of Conflicts of Laws § 145, cmt. d, at 417 (1971)).

Illinois's anti-SLAPP statute, the Illinois Citizen Participation Act (the " ICPA" ), offers fewer protections than the Act. Specifically, the Act grants absolute civil immunity for certain communications to government agencies under Section 510 and conditional immunity under Section 525 for actions " involving public participation and petition." RCW 4.24.510, 4.24.525. The Act also contains a " special motion to strike" provision that allows for early adjudication of a plaintiff's claim on the merits. RCW 4.24.525(4)(a). By contrast, the ICPA grants only narrow conditional immunity and does not contain a special motion to strike provision. See 735 ILCS 110/1 et seq ; Sandholm, 962 N.E.2d at 430 (reversing dismissal under the ICPA where " a plaintiff files suit genuinely seeking relief for damages for the alleged defamation or intentionally tortious acts of defendant," explaining that " had the legislature intended to radically alter the common law by imposing a qualified privilege on defamation within the process of petitioning the government, it would have explicitly stated its intent to do so" ). Because the scope of immunity offered under the ICPA and the Act is different, the Court must decide whether Illinois or Washington law applies.

The parties do not dispute that Illinois law governs Intercon's defamation and false light claims. Defendants assert however that its defenses to those claims, to the extent they are inconsistent with

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Illinois law, are governed by Washington law. In Illinois, courts generally use the " most significant contacts" test in resolving conflicts of law. See Auto-Owners Ins. Co. v. Websolv Computing, Inc., 580 F.3d 543, 547 (7th Cir. 2009). Illinois also follows the doctrine of depecage, [2] " which refers to the process of cutting up a case into individual issues, each subject to a separate choice-of-law analysis." Townsend, 879 N.E.2d at 901. Under the doctrine of depecage, the issue of whether a statement is defamatory is distinct from the issue of whether that statement is privileged. See Wilkow v. Forbes, Inc., 2000 WL 631344, at *5 (N.D. Ill. May 15, 2000), aff'd, 241 F.3d 552 (7th Cir. 2001); see also Vantassell-Matin v. Nelson, 741 F.Supp. 698, 704 (N.D. Ill. 1990) (Shadur, J.) (In the choice-of-law context, " the threshold question [of defamation] and the defenses are different issues and call for different analyses" ).

In determining which law to apply to defenses raised pursuant to anti-SLAPP statutes, courts have found the place where the allegedly tortious speech took place and the domicile of the speaker central to the choice-of-law analysis. See, e.g., Chi v. Loyola Univ. Med. Ctr, 787 F.Supp.2d 797, 803 (N.D. Ill. 2011). This approach is based on a recognition that the purpose of an anti-SLAPP law is to encourage the exercise of free speech and that states have a strong interest in having their own anti-SLAPP law applied to the speech of their own citizens, at least when that speech is initiated within the state's borders. See, e.g., id ; Global Relief Found. v. New York Times Co., No. 01 C 8821, 2002 WL 31045394, at *10 (N.D. Ill. Sept. 11, 2002)). Thus although the place of injury is usually a central factor in determining what law governs a tort claim, this factor has been found to be " less important" in the anti-SLAPP context. See, e.g., Chi, 787 F.Supp.2d at 803. Thus courts applying Illinois choice-of-law principles in defamation cases where anti-SLAPP defenses are raised have held that the plaintiff's defamation claims and defendant's anti-SLAPP defenses need not be governed by the same state's laws. See, e.g., Doctor's Data, Inc. v. Barrett, No. 10 C 03795, 2011 WL 5903508, at *2 (N.D. Ill. Nov. 22, 2011) (Chang, J.) (applying Illinois law to plaintiff's defamation claim but North Carolina law to the North Carolina speaker's defenses); Chi, 787 F.Supp.2d at 803 (Kennelly, J.) (applying Arizona law to plaintiff's defamation claims but the ICPA to defendant's immunity claim because Defendants were citizens of Illinois and their alleged defamatory speech originated in Illinois); Global Relief, 2002 WL 31045394, at *11 (Coar, J.) (applying Illinois law to defamation claim but California law to anti-SLAPP defense, finding that " California has a great interest in determining how much protection to give California speakers .... Thus California law has the most significant relationship and the law of California will apply to defenses to defamation" ).

In this case, Defendants are citizens of the State of Washington and their allegedly defamatory speech, though eventually published in Illinois and on the Internet, originated in that state. As Washington has a strong interest in having its own anti-SLAPP legislation applied to speech originating within its borders and made by its citizens, the Court will apply the Act in determining whether Defendants are immune from liability on Intercon's claims. See, e.g., Chi, 787 F.Supp.2d at 801-03 (applying ICPA to alleged defamatory statements drafted in Illinois but

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caused Plaintiff injury in Arizona, where it was read).

Relying on Containment Techs. Grp., Inc. v. Am. Soc'y of Health Sys. Pharmacists, No. 07-cv-0997-DFH-TAB, 2009 WL 838549, (S.D. Ind. Mar. 26, 2009), Intercon argues that Illinois, not Washington law should govern Defendants' anti-SLAPP defenses. In Containment Techs. Group, the court applied a " modified version of the 'most significant contacts' choice of law test" and concluded that a Maryland publisher was subject to Indiana's anti-SLAPP statute for its activities directed toward Indiana. [WL] at *7. Intercon's reliance on Containment Techs. Group reflects either a cursory reading or basic misunderstanding of the court's opinion in that case. The Containment Techs. Group court applied Indiana choice of law principles. Unlike Illinois, Indiana has not adopted depecage. Id. In fact, the Containment Techs. Group court specifically acknowledged that a different outcome may result under Illinois choice-of-law principles:

In Simon v. United States, the Indiana Supreme Court held on a certified question from the Third Circuit Court of Appeals that Indiana choice of law rules do not include depecage (application of different states' laws to different issues) .... Under a different conflict of laws regime, a different result might be reached, see Global Relief v. New York Times Co., 2002 WL 31045394 (N.D. Ill. Sept. 11, 2002) (applying Illinois choice of law to find that defamation action proceeded under Illinois law but that defenses to defamation, namely anti-SLAPP, should be considered under California law), but in Indiana, the entire defamation cause of action is considered under the same state's of [sic] laws.

Id. Containment Techs. Group is therefore inapposite as it is undisputed that Illinois choice-of-law principles govern in this case.

B. Defendants' Motion to Pursuant to RCW 4.24.510

The Act was passed after the Washington legislature observed that SLAPPS are " filed against individuals or organizations on a substantive issue of some public interest or social significance" and " are designed to intimidate the exercise of First Amendment Rights." Aronson v. Dog Eat Dog Films, Inc., 738 F.Supp.2d 1104, 1109 (W.D. Wash. 2010) (quoting Laws of 2002, ch. 232, § 1). The legislature determined that " [i]t is in the public interest for citizens to participate in matters of public concern and provide information to public entities and other citizens on public issues that affect them without fear of reprisal through abuse of the judicial process." RCW 4.24.525, Note (1)(d). The Act grants two forms of immunity: absolute immunity pursuant to RCW 4.24.510 (" Section 510" ) and conditional immunity pursuant to RCW 4.24.525 (" Section 525" ).

Defendants assert they are immune from liability under Section 510 of the Act because the alleged defamatory statements were communicated to government agencies and were of reasonable concern to those agencies. Section 510 provides that " a person who communicates a complaint or information to any branch or agency of federal, state, or local government ... is immune from civil liability for claims based upon the communication to the agency or organization regarding any matter reasonably of concern to that agency." [3] RCW 4.24.510.

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The purpose of Section 510 is to encourage the reporting of potential wrongdoing to governmental authorities and " protect[] advocacy to the government, regardless of content or motive, so long as it is designed to have some effect on government decision making." Bailey v. State, 147 Wn.App. 251, 191 P.3d 1285, 1291 (Wash.App. Ct. 2008). Courts have found that Section 510 has not been superseded by Section 525. See, e.g., Phoenix Trading, 2011 WL 3158416, at * 5 (finding that " [t]he two provisions are complimentary" ) (citing, 2010 WL 4857022, at *4 n. 2). The defense of immunity set forth in Section 510 is an affirmative defense and thus the burden of proof is placed on the party asserting it. See Magee v. Allen, No. 59537-7-I, 2008 WL 1934843, at *2 (Wash. Ct. App. 2008). A person who prevails under Section 510 " is entitled to recover expenses and reasonable attorneys' fees incurred in establishing the defense and in addition shall recover statutory damages of ten thousand dollars." RCW 4.24.510. " Statutory damages are mandatory under the anti-SLAPP statute, but they 'may be denied if the court finds that the complaint or information was communicated in bad faith.' " See Vanderpol v. Swinger, No. C12-773 MJP, 2012 WL 3887161, at *2 (W.D. Wash. Aug. 8, 2012) (quoting RCW 4.24.510).

Section 510 by its terms imposes two requirements: (1) the statement must be reported to a " branch or agency of federal, state, or local government," and (2) the statement must be regarding a " matter reasonably of concern to that agency or organization." See, e.g., Cornu-Labat v. Merred, No. CV-11-0080-EFS, 2012 WL 1032866, at *3 (E.D. Wash. Mar. 27, 2012) (citing RCW 4.24.510). In this case, Intercon alleges that Defendants created a letter and Evidentiary Report falsely stating that there was substantial evidence that Intercon exported hazardous electronic waste to China in violation of Illinois and federal law. (Complaint, ¶ ¶ 9-13.) Intercon further alleges that Defendants defamed it by publishing these statements by: (1) posting the letter on BAN's website; (2) sending the letter to " selected news media" ; John Lingelbach of R2 Solutions, which, according to Intercon, is a competitor e-recycling certification body; John Fraser of an organization known as " SAI Global," among others ...." ( Id. ¶ 11.) The last page of the letter, attached as Exhibit 1 to Intercon's Complaint, reveals that Defendants also copied the Illinois State Environmental Protection Agency and the United States Environmental Protection Agency on this communication. ( See Complaint, Ex. 1, p. 2.) Intercon further alleges that BAN posted on its website another defamatory press release stating that BAN had " compelling evidence" that Intercon had exported hazardous waste to China in violation of the United Nation's Basel Convention. [4] (Complaint, ¶ 15.) Finally, Intercon alleges Defendants released another press release on August 4, 2011 falsely stating that one of

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Intercon's containers " was known to contain hazardous waste." ( Id. ¶ 17.)

To the extent Defendants communicated statements to the Illinois EPA and the U.S. EPA concerning Intercon's purported handling of hazardous waste, such statements are protected under the Act's grant of immunity under Section 510. Both entities qualify as agencies of either state or federal government. Furthermore, it cannot be seriously debated that statements concerning the shipment of hazardous waste in possible violation of Illinois and federal law are of reasonable concern to state and federal environmental agencies. Therefore, pursuant to Section 510, any statements made by Defendants to either the Illinois EPA or the U.S. EPA cannot form the basis for Intercon's defamation and false light claims.

However, the statements at issue in this case are alleged to have been made not only to state and federal agencies but also to " selected news media," a competitor e-recycling certification body, and an individual at an entity known as " SAI Global." [5] Intercon also alleges that Defendants made their accusations available to the public by posting BAN's letter to Intercon, the Evidentiary Report, and defamatory press releases on BAN's publicly available website. (Complaint, ¶ ¶ 11, 14-15.) Defendants are not entitled to absolute immunity with respect to any harm Intercon alleges to have incurred as a result of these statements. The purpose of Section 510 is to " encourage the reporting of potential wrongdoing to governmental entities." See Bailey, 191 P.3d at 1290 (quoting Gontmakher v. City of Bellevue, 120 Wn.App. 365, 85 P.3d 926, 927 (Wash. Ct. App. 2004) (emphasis added); RCW 4.24.500 (setting forth the purpose of the Act and stating that " [t]he purpose of RCW 4.24.500 through 4.24.520 is to protect individuals who make good-faith reports to appropriate governmental bodies " ) (emphasis added). [6] Defendants do not point to a single case holding or even suggesting that statements made to private entities, a defendant's competitors, and media outlets are protected under the Act's absolute immunity provision. Nor do they draw the Court's attention to authority suggesting that a speaker can make otherwise defamatory statements to private entities and media organizations and successfully raise the shield of immunity under Section 510 by simply copying or forwarding the same communication to a government body. Courts applying the Act have limited the grant of immunity under Section 510 to situations where the communication is made to government agencies and officials. See, e.g., Vanderpool, 2012 WL 3887161, at *2 (counterdefendant immune from liability where counterplaintiff's allegations stemmed from counterdefendant's communication to a conservation entity that was administered at the local level by a Conservation District that was a governmental subdivision of the state and administered at the national level by the USDA's Farm Service Agency); Cornu-Labat, 2012 WL 1032866, at *4 (defendant immune from liability where statements were communicated to school officials and police department because both were held to be government

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agencies); Phoenix Trading, 2011 WL 3158416, at *7 (defendants immune under RCW 4.24.510 for statements made to New York City Mayor Michael Bloomberg, other New York City officials, the United States Customs Agency, and an Assistant United States Attorney); Young v. Bauer, No. C05-5565 RBL/KLS, 2006 WL 3246150, at *2-3 (W.D. Wash. Nov. 6, 2006) (finding defendant immune from liability pursuant to RCW 4.24.510 where communication was made to local police authority and adding that " [defendant's] only other communication or contact with any person related to [the events she observed] was when she contacted Plaintiff's probation officer to attempt to locate Plaintiff" ). Thus unlike Section 525, the Act's much broader immunity provision protecting any " action involving public participation and petition," including any statements made or submitted " in a place open to the public or a public forum in connection with an issue of public concern" and " any ... lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public concern," RWC 4.24.525(2)(d)-(e), the Act's grant of absolute immunity under Section 510 is plainly limited to " complaint[s] or information" communicated to a " branch or agency of federal, state, or local government ...." RCW 4.24.510. Therefore, the Court finds that Defendants are not entitled to immunity under Section 510 for claims arising from Defendants' communications to the media, other private entities, or postings on BAN's publicly available website.

Accordingly, Defendants' Motion to Dismiss pursuant to Section 510 of the Act is granted to the extent that Intercon's defamation and false light claims arise from Defendants' alleged communications to the Illinois EPA and U.S. EPA but is denied to the extent Intercon's claims arise from Defendants' alleged communications to " selected news media," John Fraser, John Lingelbach, any other nongovernmental entities, and Defendants' postings on BAN's publicly available website.

C. Defendants' Special Motion to Strike Pursuant to RCW 4.24.525

Section 525 of the Act immunizes defendants against " any claim that is based on an action involving public participation." RCW 4.24.525(4)(a). Section 525 defines the phrase " action involving public participation" broadly:

This section applies to any claim, however characterized, that is based on an action involving public participation and petition. As used in this section, an " action involving public participation and petition includes:
(a) Any oral statement made, or written statement or other document submitted, in a legislative, executive, or judicial proceeding or other governmental proceeding authorized by law;
(b) Any oral statement made, or written statement or other document submitted, in connection with an issue under consideration or review by a legislative, executive, or judicial proceeding or other governmental proceeding authorized by law;
(c) Any oral statement made, or written statement or other document submitted, that is reasonably likely to encourage or to enlist public participation in an effort to effect consideration or review or an issue in legislative, executive, or judicial proceeding or other governmental proceeding authorized by law;
(d) Any oral statement made, or written statement or other document submitted, in a place open to the public or a public forum in connection with an issue of public concern; or

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(e) Any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public concern, or in furtherance of the ...

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