Full Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE MAIN LINE GROWTH, LLC, a ) Delaware Limited Liability Company, ) ) Plaintiff and Counterclaim ) Defendant, ) ) v. ) C.A. No. N25C-12-329 PAW CCLD ) AMERICAN POLYMERS INC. d/b/a ) AMPO-USA, a Delaware Corporation, ) ) Defendant, Counterclaim ) Plaintiff, and Third-Party ) Plaintiff, ) ) v. ) ) MICHAEL STILES, DONALD C. ) VAVALA, and DONNA STILES, ) ) Third-Party Defendants. ) Submitted: July 1, 2026 Decided: August 27, 2026 OPINION Upon Third-Party Defendants’ Special Motion to Dismiss Pursuant to 10 Del. C. § 6003 and for Punitive Damages Under 10 Del. C. § 6010(b); GRANTED, in part and DENIED, in part. Michael W. McDermott, Esq.; David B. Anthony, Esq.; and Zachary J. Schnapp, Esq., of Berger McDermott LLP, Attorneys for Plaintiff/Counterclaim Defendant Main Line Growth, LLC and Third-Party Defendants Michael Stiles, Donald C. Vavala, and Donna Stiles. Jaclyn C. Marasco, Esq., of Faegre Drinker Biddle & Reath LLP; Melinda Bowen, Esq.; and Erich Linder, Esq., of Spencer Fane, Attorneys for Defendant/Counterclaim Plaintiff/Third-Party Plaintiff American Polymers Inc. d/b/a AMPO-USA. WINSTON, J. 2 I. INTRODUCTION This opinion addresses a novel issue under Delaware’s recently amended statute concerning “strategic lawsuits against public participation,” commonly known as “SLAPPs.” The statute applies where a cause of action is based on speech or speech-related conduct that fits into one of three categories. Of the three, only one is at issue here: “Communication on an issue under consideration or review in a legislative, executive, judicial, administrative, or other governmental proceeding.”1 The Court is asked to determine whether communications are “on an issue under consideration or review” in a judicial proceeding. In answering that question, the Court agrees with the courts of California—a state with well-developed anti-SLAPP jurisprudence interpreting similar statutory language—that the law does not protect statements “having any connection, however remote, with an official proceeding.”2 The Court also agrees that, to qualify for protection, a statement must at least “relate[] to the substantive issues in the 1 10 Del. C. § 6002(b)(2). 2 See, e.g., Bassi v. Bassi, 321 Cal. Rptr. 3d 1, 14 (Cal. Ct. App. 2024) (quoting Paul v. Friedman, 117 Cal. Rptr. 2d 82, 92 (Cal. Ct. App. 2002), abrogated on other grounds by Jacob B. v. Cty. of Shasta, 154 P.3d 1003 (Cal. 2007)). 3 litigation.”3 Such a determination does not lend itself to bright lines, and the Court does not purport to draw them. It will depend on the specific facts of each case. Turning to the facts here: Through his government procurement business, AMPO, Brodie Trout entered into a business relationship with his wife’s family. Tensions arose, first in the marriage and then in the business relationship. MLG, Trout’s former uncle-in-law’s consulting business, commenced this lawsuit against AMPO for breach of contract. AMPO filed counterclaims and third-party claims, including for defamation and tortious interference against Trout’s former mother-in- law (Donna), the uncle-in-law (Mike), and an MLG contractor (Vavala). Those third-party defendants now move to dismiss the defamation and tortious interference claims. As their basis for dismissal, the third-party defendants first invoke the new anti-SLAPP statute. They contend the claims are based on communications “on an issue under consideration or review” in a judicial proceeding, namely, MLG’s breach of contract action. But the communications are too far removed from the breach of contract lawsuit to warrant anti-SLAPP protection. The relevant statements are mostly Donna’s website posts. On their face, those posts, and Donna’s other communications, do not concern any substantive issue in the breach of contract 3 See, e.g., id. (quoting Neville v. Chudacoff, 73 Cal. Rptr. 3d 383, 391 (Cal. Ct. App. 2008)). 4 action. The closest they come is an assertion that Trout “owes our family money!” But there is no indication whether that refers to the money that is the subject of MLG’s breach of contract claims. The statements do not reference this lawsuit or the threat of it; the web posts are alleged to have begun over a year before the lawsuit was filed. Overall, the communications appear to reflect personal hostility, not commentary on the substance of a business dispute. Neither the pleadings, nor any evidence in the record, show otherwise. Accordingly, the anti-SLAPP statute does not apply.4 In the alternative, the third-party defendants invoke Rules 12(b)(2) and 12(b)(6). Those rules are far from novel. And unlike the anti-SLAPP law, they do not provide an opportunity for a movant to obtain fees, costs, or punitive damages. They do, however, provide bases for dismissal here. Under the well-trod Rule 12(b)(2) and 12(b)(6) standards, the Court lacks personal jurisdiction over Donna and Mike, and AMPO fails to state a claim against Vavala. The claims against the third-party defendants are thus dismissed. 4 For the avoidance of doubt, this opinion has no bearing on whether a statement qualifies for anti-SLAPP protection under Section 6002(b)(3), which concerns “[e]xercise of the right of freedom of speech or of the press, the right to assemble or petition, or the right of association, guaranteed by the United States Constitution or Delaware’s Constitution, on a matter of public concern.” Even if a statement does not fit under Section 6002(b)(2), it may still be protected under Section 6002(b)(3) if it is “on a matter of public concern.” No one contends the statements at issue here are on a matter of public concern. 5 II. FACTUAL AND PROCEDURAL BACKGROUND5 A. THE PARTIES’ PERSONAL AND BUSINESS RELATIONSHIPS Non-party Brodie Trout (“Trout”) is the founder and CEO of counterclaim plaintiff American Polymers Inc. d/b/a AMPO-USA (“AMPO”),6 a government procurement business incorporated in Delaware.7 Trout is the ex-husband of Jaclyn Stiles (“Jaclyn”).8 Jaclyn is the daughter of third-party defendant Donna Stiles (“Donna”), who resides in Florida.9 5 For purposes of Rule 12(b)(6), the Court draws the facts from the Counterclaims (defined infra n.6) and documents incorporated therein, and it accepts as true the well-pled facts in the Counterclaims. In ruling on personal jurisdiction under Rule 12(b)(2) and on a “special motion” under 10 Del. C. § 6003, the Court is permitted to consider materials outside of the pleadings. See 10 Del. C. § 6006 (“In ruling on a motion under § 6003 of this title, the court shall consider the pleadings, the motion, any reply or response to the motion, and any evidence that could be considered in ruling on a motion for summary judgment.”); Ryan v. Gifford, 935 A.2d 258, 265 (Del. Ch. 2007) (“In ruling on a Rule 12(b)(2) motion, the court may consider the pleadings, affidavits, and any discovery of record.” (citing Cornerstone Techs., LLC v. Conrad, 2003 WL 1787959, at *3 (Del. Ch. Mar. 31, 2003))). The Court does not consider allegations that the parties stipulated to strike from the Counterclaims. See D.I. 40. 6 This opinion references AMPO’s Amended Answer, Affirmative Defenses, Counterclaims, and Third-Party Complaint (D.I. 25). The “Answer” portion of that filing (pp. 2-13) is herein cited as “Ans. ¶ [number].” The “Counterclaims and Third-Party Claims” portion (pp. 17-38) is herein called the “Counterclaims” and cited as “Countercl. ¶ [number].” 7 See Countercl. ¶¶ 2, 17, 19. 8 See id. ¶ 11. For clarity, this opinion refers to members of the Stiles family by their first names. No disrespect or familiarity is intended. 9 See id. ¶¶ 6, 16. 6 During his marriage, Trout became acquainted with Jaclyn’s uncle, third-party defendant Michael Stiles (“Mike”).10 Mike, who resides in Maryland, is the principal of plaintiff and counterclaim defendant Main Line Growth, LLC (“MLG”), a Delaware LLC.11 Trout also became acquainted with third-party defendant Donald Vavala (“Vavala,” and with Donna and Mike, “Third-Party Defendants”), MLG’s contractor.12 The Counterclaims allege that Mike represented that he and Vavala had relationships in the government procurement space and offered to help Trout grow his business.13 AMPO and MLG entered into two contracts, one in January 2021 and another in February 2023 (together, the “Agreements”).14 As a general matter, the Agreements contemplate that MLG will assist AMPO in obtaining government contracts and that, in return, MLG will receive a portion of the resulting profits.15 After the parties entered the January 2021 Agreement, AMPO obtained government contracts which MLG alleges were in connection with that Agreement.16 10 Id. ¶ 19. 11 Id. ¶¶ 3-4. 12 Id. ¶ 19. 13 Countercl. ¶ 19. 14 See id. ¶¶ 20, 30, 43; see also D.I. 1, Exs. A, B (the Agreements). 15 See generally D.I. 1, Exs. A, B. 16 See Ans. ¶¶ 13-16; see also Countercl. ¶ 26. 7 The first such contract was awarded to AMPO in November 2022.17 AMPO made at least some payments to MLG.18 B. THE PARTIES’ RELATIONSHIPS DETERIORATE, AND THIRD-PARTY DEFENDANTS ALLEGEDLY MAKE DEFAMATORY STATEMENTS By September 2024, Trout’s marriage to Jaclyn, and his relationship with his then-mother-in-law, was on shaky ground. After Trout contacted Donna looking for Jaclyn, the Counterclaims allege, Donna “commenced a[] . . . smear campaign against Trout.”19 This included Donna publishing statements on a web domain she had previously registered, “brodietrout.com.”20 “In Donna’s first publication after Jaclyn’s departure in September 2024,” AMPO alleges, “the website featured a depiction of the grim reaper as the main image on the . . . homepage.”21 On one page, the website identifies Trout as “founder/CEO of AMPO-USA” and states Trout “owes our family money!”22 More fully, that page reads: Brodie Trout is a veteran of the U.S. Army and the founder/CEO of AMPO-USA, a supply company that specializes in providing products to healthcare facilities 17 See Ans. ¶ 14. 18 See id. ¶ 20. 19 Countercl. ¶ 16. 20 Id. ¶ 17. 21 Id.; see also Countercl. Ex. 1 at pdf p. 6. 22 See Countercl. Ex. 1 at pdf pp. 3, 5. 8 and government agencies. He has used his military position to build a career in the private sector, focusing on providing supplies through his California LLC company, AMPO-USA. I have known Brodie Trout for over 10 years. He owes our family money! Please contact me at [email] or at [phone number] for more information regarding Brodie D. Trout or AMPO/USA. Thank you for your attention with this matter.23 Other pages “included old family photos, alongside quotes to the effect that a person is not always who they appear to be.”24 Another page includes, next to an image of what appears to be a holiday gift box, text on the topic of one person taking from another, such as: A broken childhood creates scars that run deep and last a lifetime. That emptiness creates a desperate hunger—a need to possess what others have, to take what isn’t earned, to copy lives that seem whole, and to claim what was never theirs. Some fill their hands with what others have worked for, yet feel nothing when they take it. They watch shadows constantly, trusting no one—not even themselves. Eventually, the mirror reveals what everyone else has already seen: in trying to fill that childhood void by blaming and taking from others, they become the very 23 See id. Another page attached to the Counterclaims is similar to the first paragraph of this quoted text, with minor differences. See id. at pdf p. 2. 24 See Countercl. ¶ 17; see also Countercl. Ex. 1 at pdf pp. 9-14. 9 thing that caused their pain—the thief, the taker, the source of someone else’s wound. . . . What’s taken without permission always finds its way back—but the cost of the return is rarely what the taker expects.25 According to the Counterclaims, Donna also wrote a direct message to an AMPO employee, stating: Brodie told us that he was broke! AND NOW I FIND OUT THAT HE TOLD YOU HIS BUSINESS IS DOING AMAZING????.... If you are in contact with him, I suggest you let him know that things are going to spiral if he continues to lie and block us as if we don’t exist. Jaclyn may go away peacefully, but her father and I won’t.26 In January 2025, Trout informed Mike that he intended to file for divorce from Jaclyn, after which “Mike, [Vavala], and MLG all effectively stopped consulting for AMPO entirely.”27 Around October 2025, Mike “threaten[ed] that he and Donna would interfere with the divorce proceedings unless Trout gave them equity in AMPO and a share of AMPO’s profits and emphasizing that Donna was already ‘texting [him] nonstop to destroy the company.’”28 Mike also “informed Trout that 25 See Countercl. Ex. 1 at pdf pp. 18-19. 26 Countercl. ¶ 38. 27 Id. ¶ 33. 28 Id. ¶ 37 (second alteration in original). 10 he would do everything in his power to undo AMPO’s success and take AMPO down.”29 Trout asked Mike about “the publications and statements about AMPO,” and “Mike told Trout he had ‘brought this upon [him]self,’” stating further that “you pissed off mama bear and now I’m going to make sure you get what you deserve.”30 When “shown the publications about Trout and AMPO, [Vavala’s] position was that it was a ‘personal issue’ and not a company issue.”31 The Counterclaims allege, “[o]n information and belief, MLG, through Mike and Vavala, has contacted government representatives and suppliers, causing reputational harm and damages to AMPO’s business.”32 They further allege that “multiple industry contacts have mentioned and/or implied that they have heard rumors from [Vavala] or Mike about AMPO’s ability to perform on its contracts.”33 29 Id. 30 Id. ¶ 39 (alteration in original). 31 Id. ¶ 40. 32 Countercl. ¶ 41. 33 Id. 11 C. THIS ACTION MLG filed this action against AMPO in December 2025.34 The complaint alleges that AMPO failed to pay MLG amounts owed under the Agreements.35 According to the complaint, AMPO most recently paid MLG under the first Agreement in May 2025 but continues to owe additional payments.36 And despite winning a contract under the second Agreement in May or June 2025, the complaint alleges, AMPO has not paid MLG under that Agreement.37 In response, AMPO filed the Counterclaims.38 They assert, among other causes of action, counts for defamation and tortious interference with business relations against Third-Party Defendants.39 According to the Counterclaims, Donna recently “abandoned the [brodietrout.com] domain,” but “[e]ven after MLG filed its 34 See generally D.I. 1. 35 See id. ¶ 34. 36 See id. ¶¶ 20-21, 25-26, 34. 37 See id. ¶¶ 17, 23, 25-26, 34. 38 See generally Countercl. AMPO filed an initial version of the Counterclaims in January 2026 but amended them after MLG, Third-Party Defendants, and two additional third-party defendants moved for partial dismissal. See generally D.I. 9, Counterclaims and Third-Party Claims; D.I. 19; D.I. 25 Ex. Redline. 39 See Countercl. ¶¶ 48-55 (Count Two for Defamation), 77-82 (Count Six for Tortious Interference with Business Relations). 12 lawsuit against AMPO, Donna continued publishing defamatory articles on her own website.”40 On May 7, 2026, Third-Party Defendants filed the instant Special Motion to Dismiss Pursuant to 10 Del. C. § 6003 and for Punitive Damages Under 10 Del. C. § 6010(b) (the “Motion”).41 Invoking Delaware’s recently amended anti-SLAPP statute, the Motion seeks expedited dismissal of the defamation and tortious interference counts, as well as costs, attorneys’ fees, expenses, and punitive damages.42 In the alternative, the Motion seeks dismissal under Rules 12(b)(2) and 12(b)(6).43 AMPO filed an opposition44 and Third-Party Defendants a reply.45 The Court heard argument on July 1, 2026.46 40 See Countercl. ¶¶ 17, 38. 41 See D.I. 30, Third-Party Defs.’ Special Mot. to Dismiss Pursuant to 10 Del. C. § 6003 and for Punitive Damages Under 10 Del. C. § 6010(b) (hereinafter “Mot.”). 42 See id. ¶¶ 5, 12-21, 43-44. 43 See id. ¶ 45. 44 See D.I. 37, Def. American Polymers Inc. d/b/a AMPO-USA’s Resp. in Opp’n to Third-Party Defs.’ Special Mot. to Dismiss Pursuant to 10 Del. C. § 6010(b) (hereinafter “Opp’n”). 45 See D.I. 41, Third Party Defs.’ Reply in Further Support of Special Mot. to Dismiss Pursuant to 10 Del. C. § 6003 and for Punitive Damages Under 10 Del. C. § 6010(b) (hereinafter “Reply”). 46 See D.I. 44. 13 III. ANALYSIS This opinion first addresses whether Delaware’s new anti-SLAPP statute applies. That issue determines the framework through which the Court addresses Third-Party Defendants’ dismissal arguments, as well as whether Third-Party Defendants may recover fees and additional damages. As previewed above and explained below, the statute does not apply. Accordingly, the Court proceeds to assess the Motion under the ordinary Rule 12(b)(2) and 12(b)(6) standards. Although Third-Party Defendants are not entitled to the anti-SLAPP statute’s heightened protections, under those well-worn standards, they are entitled to dismissal; the Court lacks personal jurisdiction over Donna and Mike, and the Counterclaims fail to state a claim against Vavala. A. THE ANTI-SLAPP STATUTE DOES NOT APPLY BECAUSE THE UNDERLYING STATEMENTS ARE NOT PROTECTED ACTIVITY. 1. DELAWARE’S ANTI-SLAPP STATUTE AND THE QUESTION REGARDING ITS APPLICATION HERE In September 2025, Delaware replaced its anti-SLAPP statute with a version of the Uniform Public Expression Protection Act (“UPEPA”).47 “The Uniform Law Commission created that model act to enhance protections from [SLAPPs],” which 47 See Del. S.B. 80 as amended by H.A. 2, 153d Gen. Assem., 85 Del. Laws ch. 217 (2025) (codified at 10 Del. C. §§ 6001-14). “Sections 6001–14 of [Delaware’s version of] UPEPA correspond with [Sections] 1–14 of the model act.” Tesaro, Inc. v. Anaptysbio, Inc., 2026 WL 1122338, at *6 n.61 (Del. Ch. Apr. 24, 2026). 14 are “meritless lawsuits brought to ‘ensnare their targets in costly litigation that chills society from engaging in constitutionally protected activity.’”48 Under UPEPA, a party may bring a “special motion” to dismiss a SLAPP claim.49 Such a motion is statutorily expedited and triggers a stay of other proceedings between the moving and responding parties.50 A moving party who prevails on a special motion is entitled to costs, attorneys’ fees, and expenses, as well as, under certain circumstances, punitive damages.51 “A special motion proceeds in three parts.”52 In part one, “the moving party must ‘establish[ ] under [Section] 6002(b) or (d) of this title that this chapter applies.’”53 If the movant satisfies part one, then in part two, the burden shifts to the responding party “to demonstrate that the challenged conduct is among the carve- outs listed in Section 6002(c).”54 If the challenged conduct is not carved out, then 48 Tesaro, 2026 WL 1122338, at *6 (quoting Unif. Pub. Expression Prot. Act, prefatory n. at 1, 3 (Unif. L. Comm’n 2020)). Like the Court of Chancery in Tesaro, this Court “relies on the Uniform Law Commission’s official comments to the model act in interpreting UPEPA.” See id. at *7 n.70 (first citing Gibson v. Keith, 492 A.2d 241, 247-48 (Del. 1985); and then citing Cannon v. Romeo Sys., Inc., 2025 WL 2848069, at *20 n.164 (Del. Ch. Oct. 7, 2025)). 49 See id. (citing 10 Del. C. § 6003). 50 See 10 Del. C. § 6004-05, 6008. 51 See id. § 6010. 52 Tesaro, 2026 WL 1122338, at *7 (referencing 10 Del. C. § 6007(a)). 53 Id. (first alteration in original) (quoting 10 Del. C. § 6007(a)(1)). 54 Id. (citing 10 Del. C. § 6007(a)(2)). 15 in part three, the Court assesses the merits of the claims; the motion will be granted if “[t]he responding party fails to establish a prima facie case as to each essential element of the cause of action” or the movant establishes that either “[t]he responding party failed to state a cause of action upon which relief can be granted” or “[t]here is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.”55 This case turns on part one, whether the anti-SLAPP statute applies. Section 6002(b) sets forth three categories to which the statute applies, namely, to a cause of action asserted based on a person’s: (1) Communication in a legislative, executive, judicial, administrative, or other governmental proceeding; (2) Communication on an issue under consideration or review in a legislative, executive, judicial, administrative, or other governmental proceeding; or (3) Exercise of the right of freedom of speech or of the press, the right to assemble or petition, or the right of association, guaranteed by the United States Constitution or Delaware’s Constitution, on a matter of public concern.56 55 10 Del. C. § 6007(a)(3). 56 Id. § 6002(b). The statute may also apply under Section 6002(d), see id. § 6007(a)(1), but that section is not relevant here. 16 The movant bears the burden to establish that the case fits under one of these three categories.57 That burden “must be carried with evidence,” but the issue is “legal” rather than “factual.”58 “If the moving party fails to prove that [UPEPA] applies, the motion must be denied.”59 To determine whether the anti-SLAPP statute applies, the Court must ask, first, “[w]hat conduct is the basis for the challenged claim(s)” and, second, “does that conduct constitute protected activity?”60 Here, the parties agree that Donna’s statements are the only conduct that is potentially protected.61 They likewise agree Section 6002(b)(2) is the only protected category that could apply and that the only 57 See 10 Del. C. § 6007(a)(1) (requiring that “[t]he moving party establish[]” statute applies); Unif. Pub. Expression Prot. Act § 7 cmt. 2 (“In this phase, the party filing the motion has the burden to establish that the Act applies for one of the reasons identified in Section 2(b).”); see also Nirschl v. Schiller, 308 Cal. Rptr. 3d 338, 347 (Cal. Ct. App. 2023) (“[T]he moving [party] has the burden of establishing that the lawsuit’s claims are based on activity protected by the statute.” (citation omitted)). 58 Unif. Pub. Expression Prot. Act § 7 cmt. 2. 59 Id. 60 See Mission Beverage Co. v. Pabst Brewing Co., LLC, 223 Cal. Rptr. 3d 547, 557 (Cal. Ct. App. 2017). 61 See Mot. ¶¶ 15-19 (arguing that “Donna’s statements are subject to the claim” and are protected activity); Opp’n ¶ 12 (explaining that the Motion points only to Donna’s statements); Reply ¶ 12 & n.5 (arguing only about Donna’s statements and noting that, although defamation is asserted against Mike and Vavala as well, the defamation count “addresses only Donna’s statements”). 17 “proceeding” to which Donna’s statements might relate is the breach of contract action MLG initiated in this case.62 Combining the statutory framework with the parties’ positions yields the decisive question: Were Donna’s statements “[c]ommunication[s] on an issue under consideration or review” in MLG’s breach of contract action against AMPO?63 2. DONNA’S STATEMENTS ARE TOO ATTENUATED FROM MLG’S BREACH OF CONTRACT ACTION TO BE PROTECTED. The answer is no. Donna’s statements are too attenuated from MLG’s breach of contract action to be “on an issue under consideration or review” therein, meaning the anti-SLAPP statute does not apply. As explained below, this result finds support from both persuasive California anti-SLAPP caselaw and analogous Delaware law on the “litigation privilege.” a. CALIFORNIA ANTI-SLAPP CASELAW No Delaware case has addressed how closely a communication must connect to an issue in a judicial proceeding to fit within Section 6002(b)(2). 64 However, 62 See Mot. ¶¶ 15-16, 19 (invoking only Section 6002(b)(2) and suggesting Donna’s statements relate to “MLG’s lawsuit against AMPO” in this case); Opp’n ¶¶ 11, 13 (asserting that “[t]he Motion is predicated only on [Section] 6002(b)(2)” and that Donna’s statements “are unrelated to the subject of MLG’s lawsuit against AMPO— i.e., a single claim for breach of contract based on AMPO’s alleged non-performance under the [Agreements]”). 63 10 Del. C. § 6002(b)(2). 64 Tesaro found it unnecessary to address a similar issue. 2026 WL 1122338, at *7 & n.71. Instead, Tesaro held that the anti-SLAPP law did not apply because the 18 California’s well-developed anti-SLAPP jurisprudence65 provides persuasive guidance.66 As California courts have explained, anti-SLAPP protection “is not accorded to statements ‘having any connection, however remote, with an official proceeding.’”67 Rather, as the statutory language directs, the statements “must occur challenged claim, contractual repudiation, did not “arise[] from” speech. See id. at *7-9. Here, there is little question that the challenged claims—for defamation and tortious interference based on allegedly defamatory statements—arise from speech. See id. at *8 (explaining that defamation is “the quintessential example” of a claim that arises from speech). In another case, the Court of Chancery found that statements made in a court proceeding were covered under Section 6002(b)(1) but denied the anti-SLAPP motion under part three. See Zama Cap. Master Fund, LP v. Ader, 2026 WL 1166092, at *1 (Del. Ch. Apr. 28, 2026) (ORDER). 65 See Thomas R. Burke, Anti-SLAPP Litigation § 8.1 (Westlaw Sept. 2025 Update) (“California’s anti-SLAPP statute is now over 30 years old and has been analyzed by more trial court orders and appellate court decisions (both published and unpublished) than any other anti-SLAPP statute in the nation.”). 66 Third-Party Defendants argue that the Court should discount California caselaw because California has not adopted UPEPA. See Reply ¶¶ 6-8. But California’s statute contains a provision similar to Delaware UPEPA Section 6002(b)(2). See Nirschl, 308 Cal. Rptr. 3d at 347 (explaining that California’s “anti-SLAPP law makes ‘any written or oral statement or writing made in connection with an issue under consideration or review by a . . . judicial body’ protected activity” (quoting Cal. Civ. Proc. § 425.16(e)(2))). That is unsurprising, because UPEPA “is modeled in part on California’s anti-SLAPP statute.” Burke, supra note 65 § 1.1. The Uniform Law Commission’s official comments to UPEPA reference California caselaw repeatedly, as did the Court of Chancery in Tesaro. See, e.g., Unif. Pub. Expression Prot. Act § 2 cmts. 1-2, 5; id. § 7 cmts. 1-2, 4; Tesaro, 2026 WL 1122338, at *7-8 & nn.70-72, 77. 67 Bassi, 321 Cal. Rptr. 3d at 14 (quoting Paul, 117 Cal. Rptr. 2d at 92). 19 in connection with ‘an issue under consideration or review’ in the proceeding.”68 That requires that the statement at least “relate[] to the substantive issues in the litigation.”69 Communications concerning matters that are “irrelevant to proving or disproving the allegations pled in the . . . proceeding” do not qualify.70 Determining whether a statement relates to substantive issues does not lend itself to bright lines and depends on the specific facts of each case. Two cases from the California Court of Appeals are instructive. The first is McConnell v. Innovative Artists Talent & Literary Agency, Inc.71 There, plaintiffs sued the talent agency that employed them seeking declarations that they had the right to terminate their employment agreements and that certain 68 See id. (quoting Paul, 117 Cal. Rptr. 2d at 92); see also Rand Res., LLC v. City of Carson, 433 P.3d 899, 906 (Cal. 2019) (“‘[I]t is insufficient to assert that the acts alleged were “in connection with” an official proceeding.’ Instead, ‘[t]here must be a connection with an issue under review in that proceeding.’” (quoting Paul, 117 Cal. Rptr. 2d at 93)). Delaware’s statute contains the same “issue under consideration or review” language. 10 Del. C. § 6002(b)(2). 69 Bassi, 321 Cal. Rptr. 3d at 14 (quoting Neville, 73 Cal. Rptr. 3d at 391). California courts also require that the statement be “directed to persons having some interest in the litigation.” See id.; see also Neville, 73 Cal. Rptr. 3d at 394-95 (collecting cases illustrating scope of requirement). Because the statements at issue here do not relate to substantive issues in the litigation, the Court need not determine whether this State’s anti-SLAPP law imposes an additional “directed to persons having some interest in the litigation” requirement. 70 See Neville, 73 Cal. Rptr. 3d at 389-90 (citing Paul, 117 Cal. Rptr. 2d at 93-94). 71 96 Cal. Rptr. 3d 1 (Cal. Ct. App. 2009). 20 provisions of those agreements were void.72 The next day, the agency sent plaintiffs letters purporting to modify their job duties.73 Plaintiffs later amended their complaints to assert wrongful termination and retaliation based in part on the purported modification of their duties.74 The agency moved to strike those causes of action under California’s anti-SLAPP statute, contending the letters were protected because they were written in connection with an issue under consideration in the judicial proceeding.75 The court affirmed denial of the anti-SLAPP motion.76 It explained that even though “the lawsuits undoubtedly precipitated” the letters, they were directed at different issues than those raised in plaintiffs’ initial lawsuit.77 As the Court observed: “[T]he . . . letter on its face says nothing at all about [plaintiff’s] lawsuit, and nothing at all about any claims [the agency] might make in that lawsuit. Consequently, it is difficult to find any basis to conclude that [the agency’s] letter 72 See id. at 3. 73 See id. at 4, 7. 74 See id. at 4, 6-7. 75 See id. at 7. 76 Id. at 3. 77 See McConnell, 96 Cal. Rptr. 3d at 7. 21 was written ‘in connection with an issue under consideration’ in those lawsuits, of which no mention at all was made.”78 The second is Bassi v. Bassi. There, an ex-wife threatened to file a complaint against her ex-husband, alleging Racketeer Influenced and Corrupt Organizations Act (RICO) claims related to the sale of counterfeit “organic” seed.79 The appellate court considered whether numerous of the ex-wife’s emails were sufficiently connected to the RICO proceedings to be protected by the anti-SLAPP statute.80 Most of the emails were not protected.81 Those emails referenced a “racket,” appeared to call the ex-husband a “seed counterfeiter,” and referenced his seed companies “stealing” and “illegally growing seed.”82 Yet the court held that they were not sufficiently connected to the RICO proceedings.83 That was because the emails were “largely or wholly composed of assertions and innuendo that bear no clear relation to [the ex-wife’s] anticipated RICO action,” and none of them suggested a “good faith intention to file a lawsuit.”84 As the court explained, it was 78 Id. 79 See Bassi, 321 Cal. Rptr. 3d at 9-10. 80 See id. at 13, 15. 81 See id. at 15. 82 See id. at 16. 83 See id. 15. 84 See id. at 16 (quoting Digerati Hldgs, LLC v. Young Money Entm’t, LLC, 123 Cal. Rptr. 3d 736, 746 (Cal. Ct. App. 2011)). 22 “insufficient for [the party seeking anti-SLAPP protection] to generally aver a connection between her communications to [the opposing party] and the anticipated exercise of her petitioning rights by filing a federal RICO action.”85 Certain other emails were protected, because “they pertain[ed] more directly to [the ex-wife’s] anticipated RICO lawsuit and include[d] or refer[red] to a draft complaint in that action.”86 The first such email “attached a revised RICO draft complaint” and suggested the ex-wife had evidentiary support for the allegations, the second advised that the ex-wife may file the RICO action but hoped to “settle our issues” without doing so, and a third asserted that the ex-husband should find a lawyer to assist with reviewing the RICO complaint.87 The court’s holding illustrates the distinction between insinuations of wrongdoing on topics vaguely related to a lawsuit, which are not protected, and communications actually referencing a lawsuit or the legal issues therein, which may be protected. Here, Donna’s statements are too vaguely related to MLG’s breach of contract action to qualify for anti-SLAPP protection. Like the letter in McConnell, Donna’s statements do not mention this lawsuit or any of the claims in it. 88 Instead, like the 85 See Bassi, 321 Cal. Rptr. 3d at 17 (citing Paul, 117 Cal. Rptr. 2d at 93-94). 86 Id. 87 See id. at 17-18. 88 McConnell, 96 Cal. Rptr. 3d at 7. 23 unprotected emails in Bassi, the statements are largely “assertions and innuendo that bear no clear relation” to MLG’s breach of contract action.89 While the Counterclaims allege that Donna published statements “to implicate AMPO’s business dealings” generally,90 none of the statements reference this lawsuit, the Agreements, or breach of any contract. The closest is the website’s assertion that Trout “owes our family money!” coupled with a reference to the fact that Trout is “founder/CEO of AMPO-USA.”91 But there is no indication that this refers to the money MLG would later allege AMPO owes it under the Agreements.92 Donna’s other statements are yet farther afield.93 89 Bassi, 321 Cal. Rptr. 3d at 16. 90 See Countercl. ¶ 50. 91 See Countercl. Ex. 1 at pdf pp. 3, 5. 92 To the extent that is what Donna was referring to, Third-Party Defendants could have submitted an affidavit averring as much. See 10 Del. C. § 6006 (permitting the Court to consider “any evidence that could be considered in ruling on a motion for summary judgment”). It is the movant’s burden to establish UPEPA applies. Unif. Pub. Expression Prot. Act § 7 cmt. 2. Although pleadings may sometimes suffice, see id., and the Counterclaims allege some of Donna’s statements were about AMPO, see, e.g., Countercl. ¶¶ 17, 38-39, 49-50, they do not show that those statements concerned AMPO’s obligations under the Agreements. 93 See, e.g., Countercl. Ex. 1 at pdf pp. 18-19 (generally referencing “tak[ing] what isn’t earned” and “a need to possess what others have”); Countercl. ¶ 38 (alleging statement that “Brodie told us he was broke,” that “things are going to spiral if he continues to lie and block us as if we don’t exist,” and that “Jaclyn may go away peacefully, but her father and I won’t”). 24 Nor do any statements suggest good faith anticipation of litigation.94 The Counterclaims allege the website statements were first posted more than a year before MLG filed this lawsuit.95 Although the Counterclaims also allege that Donna “continued publishing defamatory articles on her own website” after this litigation commenced,96 they do not identify those articles’ contents beyond anything previously posted, and Third-Party Defendants provide no reason to conclude that the articles concern MLG’s breach of contract claim.97 Together, Donna’s statements appear to reflect general personal enmity, rather than an attempt to engage regarding any specific legal dispute. At bottom, there is no basis for the Court to conclude that Donna’s statements concern substantive issues in MLG’s breach of contract action. On their face, they do not, and Third-Party Defendants have submitted no evidence to suggest 94 See Bassi, 321 Cal. Rptr. 3d at 14-16; People ex rel. Allstate Ins. Co. v. Rubin, 280 Cal. Rptr. 3d 858, 861 (Cal. Ct. App. 2021) (explaining that pre-litigation statements are protected “only where . . . [they] were made in good faith anticipation of litigation under serious consideration at the time the statements were made” (citing Bailey v. Brewer, 128 Cal. Rptr. 3d 380, 388 (Cal. Ct. App. 2011))). 95 See Countercl. ¶ 17 (alleging website posts made in September 2024). 96 See id. ¶ 38. 97 See McConnell, 96 Cal. Rptr. 3d at 6-7 (explaining that “the existence of the . . . lawsuits does not mean any writing [defendant] might send thereafter is a ‘writing made in connection with an issue under consideration or review’ in the lawsuits”). 25 otherwise. Accordingly, under persuasive California caselaw, the anti-SLAPP statute does not apply.98 b. DELAWARE LITIGATION PRIVILEGE CASELAW Delaware cases on the “litigation privilege” provide further support. As California courts have recognized, although the two areas of law are not “coextensive,” the litigation privilege can provide “an aid in construing the scope” of anti-SLAPP coverage.99 That is b