SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CIVIL DIVISION __________________________________________ ) MICHAEL E. MANN, PH.D., ) Case No.

2012 CA 8263 Pennsylvania State University ) Department of Meteorology ) Judge Natalia M. Combs Greene University Park, PA 16802, ) ) Plaintiff, ) Next Scheduled Event: v. ) Status Hearing, Oct. 11, ) 2013, 9:30 a.m. NATIONAL REVIEW, INC., ) 215 Lexington Avenue ) New York, NY 10016, ) ) - and ) ) COMPETITIVE ENTERPRISE INSTITUTE, ) ) - and ) ) RAND SIMBERG, ) ) - and ) ) MARK STEYN, ) c/o National Review, Inc., ) 215 Lexington Avenue ) New York, NY 10016, ) ) Defendants. ) ) DEFENDANTS MARK STEYN AND NATIONAL REVIEW, INC.S MOTION FOR RECONSIDERATION OF JULY 19, 2013 ORDER Shannen W. Coffin (D.C. Bar # 449197) Chris Moeser (Pro Hac Vice) STEPTOE & JOHNSON LLP 1330 Connecticut Avenue, N.W. Washington, D.C. 20036 Telephone: (202) 429-6255 Email: scoffin@steptoe.com Counsel for Defendants National Review and Mark Steyn

Defendants National Review, Inc. (National Review) and Mark Steyn respectfully request that the Court reconsider its July 19, 2013 Order denying their prior motions to dismiss (the Order). A proposed order is attached. First, and as set forth in the accompanying Memorandum of Points and Authorities, the Order appears to be based in part on material mistakes of fact. Specifically, the Order conflates the conduct of co-defendant Competitive Enterprise Institute (CEI) with that of National Review and Steyn, who never petitioned the Environmental Protection Agency to investigate Plaintiff or otherwise pressured the agency concerning Plaintiffs research. Similarly, National Review and Steyn did not criticize Plaintiffs scientific research for years, as CEI did. Nevertheless, the Order relies on these points to bolster its conclusion that National Reviews brief criticism of Plaintiffs research was defamatory speech, not protected rhetorical hyperbole. See Order, at 17. (On the other hand, when one takes into account all of the statements and accusations made over the years, the constant requests for investigations of Plaintiffs work, the alleged defamatory statements appear less akin to rhetorical hyperbole and more as factual assertions.). In addition, the Order relies on these erroneous facts in concluding Plaintiff met his burden under the Anti-SLAPP Act of demonstrating that National Review published the statements at issue with actual malice. Indeed, the Order asserts that several investigations of Plaintiffs work were prompted by allegations leveled by National Review and Steyn. See Order, at 21 (It follows that if anyone should be aware of the accuracy (or findings that the work of Plaintiff is sound), it would be the NR Defendants.). Yet there are no facts in the record or otherwise that suggest National Review and Steyn ever called for or prompted any investigation of Plaintiffs research. Consequently, the Order should be reconsidered in light of the apparent confusion of facts pertaining to each set of Defendants. 1

Second, the Order did not address Plaintiffs intentional infliction of emotional distress claim against National Review and Steyn. As a matter of law, Plaintiffs claim cannot overcome the U.S. Supreme Courts longstanding First Amendment protections against intentional infliction claims filed by public figures involving public issues. See Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50 (1988); see also Snyder v. Phelps, 131 S. Ct. 1207 (2011). In addition, the Order did not address arguments that National Reviews criticism of Plaintiffs scientific research cannot, as a matter of law, satisfy the common law standard for outrageous conduct required by the tort. Finally, the Order denying CEIs Motions to Dismiss the intentional infliction claim appears to have interpreted Plaintiffs citation of a legal treatise describing the types of injuries required to state a claim for intentional infliction of emotional distress as actual evidence of the injuries Plaintiff suffered. See CEI Omnibus Order, at 22. Yet as National Review and Steyn argued, Plaintiff has not asserted that he suffered any physical consequences stemming from his alleged emotional distress. For the foregoing reasons, the Court should reconsider its July 19, 2013 Order and dismiss Plaintiffs Complaint. Rule 12-I(a) Certification The undersigned counsel certifies that he consulted with Plaintiffs counsel on July 22, 2013, and Plaintiff does not consent to the relief sought in this Motion.

Dated: July 24, 2013

Respectfully submitted, /s/ Shannen W. Coffin Shannen W. Coffin (D.C. Bar No. 449197) Chris Moeser (Pro Hac Vice) 1330 Connecticut Avenue, NW Washington, DC 20036-1795 Telephone: (202) 429-6255 Facsimile: (202) 429-3902 Email: scoffin@steptoe.com Counsel for Defendants National Review, Inc. & Mark Steyn

CERTIFICATE OF SERVICE
I hereby certify that on this 24th day of July, 2013, I caused a copy of the foregoing Motion for Reconsideration of July 19, 2013 Order to be served by CaseFileXpress and by electronic mail upon the following: John B. Williams Bernard S. Grimm Catherine Rosato Reilly COZEN OCONNOR 1627 I Street, N.W. Suite 1100 Washington, DC 20006 Peter J. Fontaine COZEN OCONNOR 1900 Market Street Philadelphia, PA 19103 Counsel for Plaintiff David B. Rivkin, Jr. Bruce D. Brown Mark I. Bailen Andrew M. Grossman BAKER HOSTETLER LLP Washington Square, Suite 1100 1050 Connecticut Avenue, NW Washington, DC 20036 Counsel for Competitive Enterprise Institute And Rand Simberg

/s/ Shannen W. Coffin Shannen W. Coffin

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CIVIL DIVISION __________________________________________ MICHAEL E. MANN, PH.D., ) Case No. 2012 CA 8263 Pennsylvania State University ) Department of Meteorology ) Judge Natalia M. Combs Greene University Park, PA 16802, ) ) Plaintiff, ) Next Scheduled Event: v. ) Status Hearing, Oct. 11, 2013, ) 9:30 a.m. NATIONAL REVIEW, INC. ) 215 Lexington Avenue ) New York, NY 10016, ) ) COMPETITIVE ENTERPRISE INSTITUTE, ) ) - and ) ) RAND SIMBERG, ) ) - and ) ) MARK STEYN ) c/o National Review, Inc., ) 215 Lexington Avenue ) New York, NY 10016, ) ) Defendants. ) ) PROPOSED ORDER

Upon consideration of the Motion for Reconsideration filed by Defendants National Review, Inc. and Mark Steyn, and good cause appearing therefore, IT IS HEREBY ORDERED granting the Motion and dismissing Plaintiffs Complaint (now Counts I-VI of the Amended Complaint).

DATED this ___ day of ______________, 2013. Natalia M. Combs Green JUDGE (Signed in Chambers) COPIES TO:
Shannen W. Coffin Chris Moeser STEPTOE & JOHNSON LLP 1330 Connecticut Avenue, NW Washington, DC 20036-1795 scoffin@steptoe.com cmoeser@steptoe.com Counsel for Defendants National Review, Inc. and Mark Steyn John B. Williams Bernard S. Grimm Catherine Rosato Reilly COZEN OCONNOR 1627 I Street, N.W. Suite 1100 Washington, DC 20006 Peter J. Fontaine COZEN OCONNOR 1900 Market Street Philadelphia, PA 19103 Counsel for Plaintiff Bruce D. Brown Mark I. Bailen Andrew M. Grossman David B. Rivkin BAKER & HOSTETLER LLP Washington Square, Suite 1100 1050 Connecticut Avenue, N.W. Washington DC 20036-5304 Counsel for Competitive Enterprise Institute and Rand Simberg