United States Court of Appeals

For the First Circuit

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
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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 

1 SLAPP stands for "strategic lawsuit against public 

participation."
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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 
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in Maine under diversity jurisdiction. Neumann moved to dismiss 

the complaint under Federal Rule of Civil Procedure 12(b)(6) for 

failure to state a claim and, separately, under a provision of New 

York's anti-SLAPP statute, N.Y. C.P.L.R. § 3211(g). 

New York is among the many states that have passed 

anti-SLAPP laws, which generally provide extra breathing room for 

the press and others speaking out on issues of public concern by 

deterring baseless lawsuits. See Libel and Privacy, Rep.'s Comm.

for Freedom of the Press, https://perma.cc/BE5M-2UA5 (explaining 

that "[j]ournalists and news organizations often use anti-SLAPP 

laws to defend themselves against expensive, baseless lawsuits 

brought by the subject of an investigative story"). More 

specifically, such laws "provide . . . defendants [such as

reporters and news outlets] with procedural and substantive 

defenses meant to prevent meritless suits from imposing 

significant litigation costs and chilling protected speech." 

Godin v. Schencks, 629 F.3d 79, 81 (1st Cir. 2010). New York's 

anti-SLAPP statute consists of three separate, interlocking 

provisions: 

• N.Y. Civ. Rights Law § 76-a, which broadly defines 

"an action involving public petition and 

participation" to cover claims based on news articles 

about public figures and provides that a plaintiff

like Cheng can succeed in such an action only if she 

establishes by "clear and convincing evidence" that 

the allegedly defamatory statement "was made with 

knowledge of its falsity or with reckless disregard 

of whether it was false"; 
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• N.Y. C.P.L.R. § 3211(g), which provides a procedural 

mechanism for speakers like Neumann to move to dismiss 

an action involving public participation and 

instructs that such a motion "shall be granted unless 

the party [bringing the claim, here Cheng,] 

demonstrates that the cause of action has a 

substantial basis in law or is supported by a 

substantial argument for an extension, modification, 

or reversal of existing law"; and 

• N.Y. Civ. Rights Law § 70-a ("section 70-a"), which 

provides that a defendant in an action involving 

public participation, such as a reporter or a news 

outlet like Neumann, is entitled to attorneys' fees 

upon a demonstration, including a finding under N.Y. 

C.P.L.R. § 3211(g), that the action was commenced 

without any substantial basis in law or argument for 

extending the law. 

Given that Cheng resides in New York and Neumann is based 

in Maine, the parties disputed in the district court whether Maine 

or New York law applied. After conducting a choice-of-law analysis 

and determining that New York law governed Cheng's defamation claim 

because she is a New York resident and would have experienced any 

harm from the speech in New York, the district court granted 

Neumann's motion to dismiss under N.Y. C.P.L.R. § 3211(g). See

Cheng v. Neumann, No. 21-cv-00181, 2022 WL 326785, at *7 (D. Me. 

Feb. 3, 2022) (explaining that "the New York anti-SLAPP law applies 

here rather than the standard Rule 12(b)(6) framework"); id. at *9 

(dismissing the case because "[p]laintiffs have failed to 

demonstrate that [d]efendants' [a]rticle is not presumptively 

protected from suit under New York Civil Rights Law § 76-a or that 
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their libel claim 'has a substantial basis in law['] . . . under 

New York Civil Practice Law and Rule 3211(g)"). Cheng appealed. 

On appeal, we affirmed but took a different route. 

Instead of evaluating the district court's choice-of-law analysis 

and affirming under New York law, we "bypass[ed] the parties' 

choice-of-law disputes" and instead "look[ed] to dispositive First 

Amendment principles." Cheng I, 51 F.4th at 443. Because the 

Beacon article, on its face, contained only statements that were 

either factually true or expressions of opinion and therefore 

unprovable as false, we held that the complaint did not state a 

plausible defamation claim under any state's law given binding

First Amendment precedent. Id. at 445-47. 

Back in district court, as the winning party on the 

defamation claim, Neumann requested attorneys' fees and costs 

under Federal Rule of Civil Procedure 54(d)(2), which allows a 

prevailing party to move for attorneys' fees after the entry of 

judgment. The rule also requires the party seeking fees, here 

Neumann, to "specify . . . the statute, rule, or other grounds 

entitling the movant to the award." Fed. R. Civ. P. 

54(d)(2)(B)(ii). Neumann identified section 70-a, the 

fee-shifting provision of New York's anti-SLAPP law, as the source 

of authority for his request. 

The district court denied Neumann's attorneys' fees 

motion. It concluded that the question of which state's law 
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applied to the attorneys' fees issue was a separate and distinct 

question from which state's law applied to Cheng's defamation claim

itself. Relying on choice-of-law principles from the Second 

Restatement of Conflict of Laws, the court determined that Maine 

law governed Neumann's request for fees because "New York's 

interest in a Maine publisher's access to a fee-shifting remedy in 

a Maine court is of less significance than Maine's interest in 

affording that remedy." This timely appeal followed. 

II. DISCUSSION

Neumann argues that the district court erred in its 

conflict of laws analysis on the attorneys' fees issue. He

maintains that proper evaluation of the Restatement factors 

results in the application of New York law, under which he is

entitled to fees.2 In response, Cheng contends that our decision 

in Cheng I eliminated state law from this case altogether by 

resolving the merits on First Amendment grounds. In her view, 

under the law of the case doctrine, our prior decision means that 

only federal law applies in this case, and Neumann has no right to 

fees under federal law. 

2 We note that section 70-a does not condition an award of 

attorneys' fees solely upon prevailing under the procedural 

provisions of New York's anti-SLAPP statute, as opposed to under 

federal law. Instead, it entitles a defendant to attorneys' fees 

upon "a demonstration, including [a dismissal under New York's 

anti-SLAPP law], that the action . . . was commenced or continued 

without a substantial basis in fact and law." N.Y. Civ. Rights 

Law § 70-a (emphasis added).
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A. Law of the Case Doctrine

We begin with -- and reject -- Cheng's argument that the 

law of the case doctrine eliminates state law from this case 

altogether. 

Under our precedent, "[t]he law of the case doctrine has 

two branches" directly related to appellate decisions. United 

States v. Matthews, 643 F.3d 9, 13 (1st Cir. 2011). The first 

branch, known as the "mandate rule," prevents a trial court from 

reconsidering matters that were "explicitly or implicitly decided 

by an earlier appellate decision in the same case." Id. (quoting 

United States v. Moran, 393 F.3d 1, 7 (1st Cir. 2004)). The second 

branch "binds a 'successor appellate panel in a second appeal in 

the same case' to honor fully the original decision." Id. (quoting 

Moran, 393 F.3d at 7). "Whether the doctrine applies in a specific 

instance is a question of law, engendering de novo review." Id.

Cheng argues that Neumann's request for fees under New 

York law violates this doctrine by ignoring the "legal effect" of

our prior panel decision. She contends that our decision in 

Cheng I "determined that New York law does not apply." Thus, she 

argues, awarding fees under New York law would violate the Cheng 

I court's mandate. 

We disagree with Cheng and her interpretation of our 

prior decision. In Cheng I, we decided the merits of the 

defamation claim under overarching First Amendment principles that 
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prevented us from having to consider the state choice-of-law issue. 

See 51 F.4th at 443. Importantly, although the First Amendment 

"place[s] limits on the application of the state law of 

defamation," Milkovich v. Lorain J. Co., 497 U.S. 1, 14 (1990), it 

does not provide an independent source of federal defamation law.

By finding that the statements in the Beacon article were not 

constitutionally actionable under the First Amendment, then, we 

simply held that Cheng had failed to state a claim under any

state's defamation law. Or, to put it another way, we concluded 

that the First Amendment provided Neumann with a complete defense 

to a defamation claim based on the factual allegations in the 

complaint regardless of whether Maine or New York law applied. 

Accordingly, we did not need to resolve the parties' choice-of-law 

dispute because there was no conflict to resolve between the 

substantive defamation law of the two states. And because we did 

not decide the conflict of laws question, it was not part of our 

mandate on remand. See Cohen v. Brown Univ., 101 F.3d 155, 168 

(1st Cir. 1996) ("The reviewing court's mandate 'constitutes the 

law of the case on such issues of law as were actually considered 

and decided by the appellate court, or as were necessarily inferred 

from the disposition on appeal.'" (citation omitted)); 18B Charles 

Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 4478 

(3d ed. 2023) ("Actual decision of an issue is required to 
- 10 -

establish the law of the case. Law of the case does not reach a 

matter that was not decided.").

Thus, Cheng's objection to the application of New York

law based on the law of the case doctrine fails. Neumann's success 

on a federal constitutional defense does not alter the fact that 

this is a diversity suit involving only a state law claim for 

defamation. And in diversity actions, "in the absence of 

countervailing . . . principles," federal courts "apply state law 

with regard to the allowance or disallowance of attorneys' fees, 

as well as to the determination of the amount of the fee award." 

1 Robert L. Rossi, Attorneys' Fees § 10:5 (3d ed. 2023) (footnotes 

omitted); see also B. Fernandez & HNOS, Inc. v. Kellogg USA, Inc., 

516 F.3d 18, 28 (1st Cir. 2008) ("Attorneys' fees are recoverable 

in diversity cases where a state law provides the right to recover 

such fees." (footnotes omitted)). 

B. The Conflict of Laws Issue

1. Whether a Conflict Exists

We turn next to Neumann's argument that the district 

court incorrectly applied Maine rather than New York law to the 

attorneys' fees issue. We review this legal dispute over the 

choice-of-law analysis de novo. See Levin v. Dalva Bros., 459 

F.3d 68, 73 (1st Cir. 2006). "When analyzing choice-of-law issues, 

federal courts sitting in diversity apply the substantive law of 

the forum state, here [Maine], including its conflict of laws 
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rules." Smith v. Prudential Ins. Co. of Am., 88 F.4th 40, 49 (1st 

2023). As a threshold step, Maine courts consider whether any 

conflict exists between two states' laws before conducting a

choice-of-law analysis. See Flaherty v. Allstate Ins. Co., 822 

A.2d 1159, 1165 (Me. 2003) (noting that Maine and Connecticut have 

distinct wrongful death statutes before analyzing which state's 

law should apply). 

The parties essentially agree that there is a conflict 

between Maine and New York law on the attorneys' fees issue, and 

the district court correctly concluded that such a conflict exists. 

As the parties point out, Maine has its own anti-SLAPP law, and

the two states' anti-SLAPP statutes are different in important 

ways. First, they have distinct provisions about the availability 

of attorneys' fees when a complaint is dismissed. Compare N.Y. 

Civ. Rights Law § 70-a(1)(a) (providing that "costs and attorney's 

fees shall be recovered upon a demonstration" that statutory 

requirements are met, such that fees are mandatory (emphasis 

added)), with Me. Rev. Stat. tit. 14, § 556 (providing that "[i]f 

the court grants a special motion to dismiss, the court may award 

the moving party costs and reasonable attorney's fees," such that 

fees are discretionary (emphasis added)). Second, the statutes' 

scopes are different. Maine's anti-SLAPP law applies only to 

statements arising from the "exercise of the . . . right of 

petition under the Constitution of the United States or the 
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Constitution of Maine." Me. Rev. Stat. tit. 14, § 556. Although 

Maine's statute defines petitioning activity broadly as speech 

tending to influence governmental decision-making, it is generally 

understood not to apply to mine-run news articles like the one at 

issue in this case.3 See Gaudette v. Mainely Media, LLC, 160 A.3d 

539, 543 (Me. 2017) ("Maine's anti–SLAPP statute is not applicable 

to newspaper articles unless those articles constitute the 

newspaper petitioning on its own behalf or the party seeking to 

invoke the anti–SLAPP statute is a party that used the newspaper 

to broadcast the party's own petitioning activities."). By 

contrast, New York's statute protects a much broader swath of 

speech, including speech by the press in news articles on issues 

of public interest. See N.Y. Civ. Rights Law § 76-a(1)(a)

(defining an "action involving public petition and participation" 

as a "claim based upon," inter alia, "any . . . lawful conduct in 

3 Under Maine's anti-SLAPP statute, petitioning activity

includes "any statement reasonably likely to encourage 

consideration or review of an issue by a legislative, executive or 

judicial body, or any other government proceeding," and "any 

statement reasonably likely to enlist public participation in an 

effort to effect such consideration." Me. Rev. Stat. tit. 14, 

§ 556; see Thurlow v. Nelson, 263 A.3d 494, 503 (Me. 2021) (holding 

that letter sent by parents of student to public school officials 

complaining about assistant principal was petitioning activity,

"[p]articularly given the broad reach of section 556"). Still, 

the parties agree that Maine's anti-SLAPP statute is not at issue. 

Cheng argues that the statements here did not implicate petitioning 

activity, and Neumann notes that he never invoked the Maine statute 

nor moved to dismiss the complaint pursuant to it.
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furtherance of the exercise of the constitutional right of free 

speech in connection with an issue of public interest"). 

Thus, there is a clear conflict between Maine and New 

York law on the attorneys' fees issue. So, we now proceed to the 

question of whether the district court correctly applied Maine 

choice-of-law rules in concluding that Maine law applies.4

2. Maine or New York Law?

Defamation is a common law tort. And under Maine law, 

"questions regarding . . . liability for tortious conduct are 

appropriately addressed pursuant to tort choice-of-law 

principles," which Maine courts derive from the Second Restatement 

of Conflict of Laws. State Farm Mut. Auto. Ins. Co. v. Koshy, 995 

A.2d 651, 660 (Me. 2010); see also Flaherty, 822 A.2d at 1165. 

The Restatement provides specific guidance regarding 

choice-of-law determinations in "[m]ultistate [d]efamation" cases

like this one. Restatement (Second) of Conflict of L. § 150 (Am. 

L. Inst. 1971). It instructs that "[t]he rights and liabilities 

4 Neumann contends that there is no conflict here because he 

is entitled to fees under Maine's exception to the "American rule,"

which provides that parties usually must bear their own costs and 

fees in litigation unless there is "clear statutory authority" to 

the contrary. Indorf v. Keep, 288 A.3d 1214, 1219 (Me. 2023) 

(citation omitted). Section 70-a, Neumann contends, provides that 

clear statutory authority. But this argument assumes that Neumann 

is right that New York law applies to the attorneys' fees issue. 

We see no reason that a New York statute would provide "clear 

statutory authority" to award fees if Maine law governs the fees

issue here. Because Neumann cites no authority to convince us 

otherwise, we reject this argument. 
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that arise from defamatory matter in any . . . book or newspaper, 

or any . . . similar aggregate communication[,] are determined by 

the local law of the state" that has the "most significant 

relationship to the occurrence and the parties." Id. § 150(1). 

And "[w]hen a natural person" like Cheng brings a defamation claim, 

"the state of most significant relationship will usually be the 

state where the person was domiciled at the time." Id. § 150(2). 

Here, there is no dispute that Cheng was "domiciled" in New York 

at the time Beacon published the article.5 Thus, under section 

150(2), the presumption that New York law applies can be overcome 

only if, "with respect to the particular issue, some other state 

has a more significant relationship to the occurrence and the 

parties." Id. § 150 cmt. b. 

As the district court correctly concluded, the

choice-of-law analysis must focus on the specific question here: 

Which state's law governs the attorneys' fees dispute? Whether

the Law Court would apply section 150 to the issue of attorneys' 

fees in defamation suits is unclear. Although the Restatement 

suggests that "at least most issues involving [defamation]" should 

be determined by the law of the defamed party's domicile, id. § 150 

cmt. e, no Maine court has applied the section 150(2) presumption 

5 "Domicile has two components: residence and the intent to 

remain. When these concur there is domicile." Margani v. Sanders, 

453 A.2d 501, 503 (Me. 1982). 
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in the context of attorneys' fees. In fact, no Maine court has 

yet evaluated whether this presumption applies to the merits of a 

defamation claim. 

Even if it were obvious that the Law Court would apply 

section 150(2), how it would answer the subsequent 

question -- whether Maine has a "more significant relationship" to 

the attorneys' fees issue, such that the presumption in favor of 

New York law could be overcome -- is far from clear. Several 

principles guide the "more significant relationship" inquiry. Id.

§ 145(1). The Restatement emphasizes:

(a) the needs of the interstate and 

international systems, (b) the relevant 

policies of the forum [here, Maine], (c) the 

relevant policies of other interested states 

[here, New York] and the relative interests of 

those states in the determination of the 

particular issue, . . . and (g) ease in the 

determination and application of the law to be 

applied. 

Id. § 6(2); see also id. § 145 cmt. b. Maine courts put it more 

succinctly:

In applying the "most significant contacts and 

relationships" test, it is necessary to 

isolate the issue, to identify the policies 

embraced in the laws in conflict, and finally 

to examine the contacts with the respective 

jurisdictions to determine which jurisdiction 

has a superior interest in having its policy 

or law applied.

Collins v. Trius, Inc., 663 A.2d 570, 573 (Me. 1995); see also

Flaherty, 822 A.2d at 1167.
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The district court reasoned that Maine's interest in 

having its fee-shifting law apply was superior to New York's 

interest because Neumann resides in Maine and defended against the 

suit in Maine. On appeal, Neumann contends that the district 

court's analysis failed to sufficiently account for or balance the 

"policies embraced in the laws in conflict" -- here, the two 

states' anti-SLAPP laws. Collins, 663 A.2d at 573. In Neumann's 

view, applying New York law would better accommodate both states' 

interests by giving effect to New York's broader regime without 

hindering Maine's interests. 

Neumann is correct that New York's anti-SLAPP law

reflects a broad interest in giving speech, including speech by

the press, as much breathing room as possible and deterring suits 

like this one. New York's statute was enacted with the goal of 

providing "the utmost protection for the free exercise or speech, 

petition, and association rights." Aristocrat Plastic Surgery, 

P.C. v. Silva, 169 N.Y.S.3d 272, 275 (N.Y. App. Div. 2022)

(citation omitted). In 2020, the New York legislature passed 

amendments intended to "broadly widen[] the ambit of the law" by, 

for example, expanding the definition of what constitutes an 

"action involving public petition and participation" and making an 

award of attorneys' fees under section 70-a mandatory, rather than 

permissive. Id. at 274-75. Thus, New York has expressed a strong

policy interest in deterring SLAPP suits from being filed in the 
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first place by requiring plaintiffs to pay the costs associated 

with bringing a frivolous defamation claim designed to chill 

protected speech. See Ent. Partners Grp., Inc. v. Davis, 603

N.Y.S.2d 439, 440 (N.Y. App. Div. 1993). 

Maine has taken a different approach than New York in 

balancing the competing interests at stake, including how much 

breathing room to give the press in reporting on issues of public 

concern, by adopting a narrower anti-SLAPP statute. Its law covers 

only suits that target "petitioning activity" and provides that a 

court "may," but not must, award attorneys' fees upon a successful 

motion to dismiss such a suit. Me. Rev. Stat. tit. 14, § 556. 

Neumann argues that Maine's decision to adopt a narrower statute 

than New York's does not reflect an interest in depriving Maine

residents of the remedies provided by other states' anti-SLAPP 

laws, and thus that Maine's policy interests would not be hindered 

by application of New York law here. 

We are not so sure. Each state's anti-SLAPP law reflects

sensitive legislative judgments about how best to balance

speakers' rights to speak out on issues of public concern with

injured parties' rights to seek redress for alleged harms from 

such speech. New York law has given more leeway to more categories 

of speech than Maine has. Indeed, Maine deliberately chose to 

enact a law that allows a party to sue the press and speakers

without fear of being held liable for attorneys' fees if its suit 
- 18 -

is dismissed, as long as the suit does not involve "petitioning 

activity." And even if the suit is about petitioning activity and

fails on the merits, Maine law makes clear to speakers that they 

are not automatically entitled to attorneys' fees for successfully 

defending against such a lawsuit. This is an important component 

of Maine's regime for plaintiffs evaluating whether to bring 

potentially valid defamation claims. It also impacts the actions 

of speakers in Maine: Those who are engaged in non-petitioning 

activity are on notice that they have less room for error in their 

speech, lest they be forced to bear the costs of defending

themselves in court. Awarding fees under New York law could, at 

least potentially, upset this careful balance the Maine 

legislature has struck. 

On the other hand, allowing a SLAPP plaintiff from New 

York to avoid fee liability simply because they sue an out-of-state 

resident in that resident's home court disserves New York's 

interest in deterring its residents from launching these types of 

suits at all. In an age when many communications take place over 

the internet, declining to apply New York law may severely impair 

New York's ability to regulate this aspect of its residents' 

conduct. 

3. Certification

"When faced with potentially outcome-determinative 

questions of Maine law for which 'there is no clear controlling 
- 19 -

precedent in the decisions of the Supreme Judicial Court,' a 

federal court may certify those questions to the Law Court 'for 

instructions' on how to rule." Mundell v. Acadia Hosp. Corp., 92 

F.4th 1, 6 (1st Cir. 2024) (quoting Me. R. App. P. 25). Of course, 

we do not certify every time a difficult question of state law 

arises. See Plourde v. Sorin Grp. USA, Inc., 23 F.4th 29, 36 (1st 

Cir. 2022) (explaining that we employ certification judiciously so 

as "not to bother our busy state colleagues with every difficult 

state-law issue that comes our way"). So long as the "answer to 

[a] question is 'sufficiently clear to allow us to predict [the 

Law Court's] course,'" we will answer it ourselves. R.I. Truck 

Ctr., LLC v. Daimler Trucks N. Am., LLC, 92 F.4th 330, 348 (1st 

Cir. 2024) (quoting Hosp. San Antonio, Inc. v. Oquendo-Lorenzo, 47 

F.4th 1, 6 (1st Cir. 2022)). But when "the answer[] to the[] 

question[] may hinge on policy judgments best left to the [state] 

court," In re Engage, Inc., 544 F.3d 50, 53 (1st Cir. 2008), and 

"the outcome [the court would reach is] far from certain," 

Easthampton Sav. Bank v. City of Springfield, 736 F.3d 46, 51 (1st 

Cir. 2013), certification is prudent. Our Maine colleagues, in 

turn, will exercise their discretion to answer certified questions 

"when three criteria are met: (1) there is no dispute as to the 

material facts at issue; (2) there is no clear controlling 

precedent; and (3) [their] answer, in at least one alternative, 
- 20 -

would be determinative of the case." Franchini v. Inv.'s Bus. 

Daily, Inc., 268 A.3d 863, 865-66 (Me. 2022) (citation omitted). 

Both our criteria for certifying a question and, in our 

view, Maine's criteria for answering it are met in this case. 

First, and most importantly, there is no controlling precedent on 

point. The Law Court has not established a legal standard for 

evaluating choice-of-law issues in a defamation action; as such, 

we cannot say definitively if it would adopt the section 150(2)

presumption. Even if it were to apply this presumption to "most" 

issues in a defamation action, we do not know if attorneys' fees

liability is among those issues. And even if the presumption 

applied here, the outcome the Law Court would reach in determining 

whether Maine has a superior interest in consistently regulating 

the speech of its residents than New York has in deterring its

residents from filing meritless lawsuits is "far from certain." 

Easthampton Sav. Bank, 736 F.3d at 51. 

Second, assuming the presumption applies, the superior 

interest inquiry may turn upon a policy judgment that would have 

"implications beyond these parties": whether the goals of Maine's 

or New York's anti-SLAPP regime would be more harmed by the 

imposition of fees against a New York resident who brings a 

meritless defamation claim against a Maine resident. See In re 

Engage, Inc., 544 F.3d at 53. And, although "we often resolve 

questions of state law that affect many, certification is more 
- 21 -

appropriate" when, like here, the "policy arguments" do not "line 

up solely behind one solution." Patel v. 7-Eleven, Inc., 8 F.4th 

26, 29 (1st Cir. 2021) (quoting In re Engage, Inc., 544 F.3d at 

57). Finally, we note that the outcome here may well impact how 

often out-of-state plaintiffs choose to file defamation claims in 

Maine's courts. As for the Law Court's additional criteria, no 

disputes of material fact exist, and its decision would be 

determinative of this case. If the Law Court were to find that 

New York law applies, then Neumann would be entitled to seek fees. 

And if Maine law applies, then Neumann's quest for fees ends. 

Accordingly, rather than hazard a guess on the choice-of-law issue, 

we certify the question to the Law Court.6 

III. CONCLUSION

For all these reasons, we certify the following question 

to the Supreme Judicial Court of Maine:

Under Maine's conflict of laws rules, does 

Maine's or New York's anti-SLAPP law govern a 

New York plaintiff's fee liability after its 

defamation claim against a Maine resident for 

speech in Maine has been dismissed under 

Federal Rule of Civil Procedure 12(b)(6) for 

failure to state a claim under overarching 

First Amendment principles? 

The clerk of this court is directed to forward to the 

Law Court, under the official seal of this court, a copy of the 

6 Although neither party requested certification, we may 

certify questions sua sponte. See Easthampton Sav. Bank, 736 F.3d 

at 50 n.4. 
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certified question and our decision in this case, along with copies 

of the briefs filed by the parties in this appeal, which provide 

all facts relevant to the issue certified. We retain jurisdiction 

pending the Law Court's determination.