Ninth Circuit Declines to Reconsider Applicability of Anti-SLAPP Statute in Federal Court

by Davis Wright Tremaine LLP
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Thanksgiving arrived early for those who use California’s anti-SLAPP statute to fight meritless claims targeting free speech and petition rights. On Nov. 27, 2013, the Ninth Circuit Court of Appeals refused to reconsider its decisions applying the law in federal court and immediately reviewing orders denying anti-SLAPP motions under the collateral order doctrine. You can read the opinion here.

In April 2013, the court in Makaeff v. Trump University, LLC affirmed the district court’s application of the law to a counterclaim that the plaintiff defamed the defendant company in comments on websites and letters to the Better Business Bureau. 715 F.3d 254 (9th Cir. 2013). In a harshly worded concurrence, however, Chief Judge Alex Kozinski urged the court to hear the case en banc and reverse its holding in Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 973 (9th Cir.1999) that the anti-SLAPP statute, Cal. Civ. Code § 425.16, applies in federal court. Judge Richard A. Paez wrote a separate concurrence, pressing the court to reconsider its decision in Batzel v. Smith, 333 F.3d 1018, 1025 (9th Cir.2003), that orders denying anti-SLAPP motions are appealable under the collateral order doctrine.

Judge Kozinski premised his argument on two points. First, he suggested that the anti-SLAPP law “creates no substantive rights” and “merely provides a procedural mechanism for vindicating existing rights,” and thus does not apply in federal court. 715 F.3d at 272. Second, he contended that even if the law does create substantive rights, it conflicts with Federal Rules of Civil Procedure 8, 12, and 56, which, along with other rules, create an “integrated program of pre-trial, trial and post-trial procedures,” an “orderly process” into which the anti-SLAPP law “cuts an ugly gash.” Id. at 274. He concluded: “Federal courts have no business applying exotic state procedural rules which, of necessity, disrupt the comprehensive scheme embodied in the Federal Rules, our jurisdictional statutes and Supreme Court interpretations thereof.” Id.

After fourteen years of Ninth Circuit precedent applying the anti-SLAPP statute, the prospect that the court might decide the statute is unavailable created a wave of uncertainty that this decision resolves. A majority of the court refused to hear the case. 2013 U.S. App. LEXIS 23901 (Nov. 27, 2013).

In a concurrence, four judges, Kim McLane Wardlaw, Consuelo M. Callahan, William A. Fletcher and Ronald M. Gould, undertook a detailed analysis of United States Supreme Court precedent to conclude that the anti-SLAPP statute should remain available in federal court, and that orders denying anti-SLAPP motions should be reviewable by way of immediate interlocutory appeal. Id. at *3-25. They wrote that “refusing to recognize” the limitations placed on SLAPPs by seven state legislatures “is bad policy.” Id. at *22. They concluded: “If we ignore how states have limited actions under their own laws, we not only flush away state legislatures’ considered decisions on matters of state law, but we also put the federal courts at risk of being swept away in a rising tide of frivolous state actions that would be filed in our circuit’s federal courts.” Id. at *22-23.

The decision resolves any lingering doubt about the availability of anti-SLAPP statutes within the Ninth Circuit.

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