The first time Burke v. Doe was before the District of Columbia Court of Appeals, it established new law, with the Court establishing that the denial of a special motion to dismiss was immediately appealable. Burke II is now before the Court, and also has the potential to be precedent setting. Here’s why.
The DC Circuit’s Abbas decision, holding that the DC anti-SLAPP statute does not apply in a federal court diversity case, is beginning to have real-world consequences for litigants in the District of Columbia. Since the April 2015 decision, at least two libel cases have been filed in DC federal court. In both cases, the defendants are not able to move under the DC anti-SLAPP statute. And for defendants sued in DC Superior Court – who are able to remove the case to federal court because of diversity jurisdiction – the Abbas decision leaves them with a difficult decision.
Since the DC Circuit issued its Abbas decision, two new libel suits have been filed in DC federal court based upon diversity jurisdiction:
- In Rogers v. Secular Coalition for America, Inc., the plaintiff is suing her former employer and others for defamation and related torts arising out of her termination. (Disclosure: I am representing one of the individual defendants in this case).
- In Hourani v. PsyberSolutions LLC, the plaintiff (represented by three of the same attorneys who represented the Abbas plaintiff) alleges that the defendants defamed him by suggesting that he was complicit in the murder of a woman.
Because of the Abbas decision, none of the defendants in either case are able to move under the DC anti-SLAPP statute. If the cases were in DC Superior Court, the defendants could make an anti-SLAPP motion (assuming that they could show that the suit was based upon act or acts “in furtherance of the right of advocacy on issues of public interest”).
In an amicus brief filed in the Abbas case, the District of Columbia argued that the DC anti-SLAPP statute should apply in a federal court diversity case because “it would be inequitable to allow the use of a defense to parties subjected to a SLAPP in Superior Court, but deny them the use of that defense in federal court, especially since the choice of forum is, in large part, the province of the plaintiff” and because “if plaintiffs are subject to the heightened burden of proof set forth in the Act if they file their case in local court, but can avoid being subject to those standards if they file in federal court, that result will promote precisely the type of forum-shopping Erie was designed to avoid.” Until Congress passes a federal anti-SLAPP statute, or the DC Circuit or Supreme Court hold that anti-SLAPP statutes apply in federal court, smart plaintiffs will file their libel cases in federal court, if they can, knowing that they are avoiding a possible anti-SLAPP motion.
In the meantime, a defendant who is sued in Superior Court, but who has the ability to remove the case to federal court because of diversity jurisdiction, has a difficult choice. The deadline for removal is 30 days – not enough time to file an anti-SLAPP motion and get a ruling from the Superior Court. So that defendant must decide whether to remain in Superior Court, so that it can file an anti-SLAPP motion, or remove the case to federal court, knowing that it will not be able to file an anti-SLAPP motion.
Growing disagreement among federal courts over whether state anti-SLAPP statutes apply in federal court makes clear that the Supreme Court is going to have to resolve this issue.
The DC Circuit created a circuit split when it held, in Abbas v. Foreign Policy Group, that the Federal Rules of Civil Procedure exclusively “establish the standards for granting pre-trial judgment to defendants in cases in federal court” and that, because the District of Columbia’s anti-SLAPP statute dictated a pre-trial procedure that conflicted with those rules, it could not apply in a federal court diversity case. (The parties in the Abbas case have since advised the district court that one, or both, might seek Supreme Court review).
At the time it was issued, Abbas was the only federal appellate decision that rejected the application of a state anti-SLAPP statute in federal court (although several judges in the Ninth Circuit had urged that court to reexamine its prior decisions because they believed that “[v]iewed through Shady Grove’s lens, California’s anti-SLAPP statute conflicts with Federal Rules 12 and 56”).
The Abbas decision was in direct contrast to Godin v. Schencks, where the First Circuit held that the Maine anti-SLAPP statute did not conflict with the Federal Rules of Civil Procedure, and could be applied in federal court, and U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., where the Ninth Circuit held that California’s anti-SLAPP statute did not conflict with Federal Rules 12 and 56.
Now, however, the Seventh Circuit has openly questioned whether the Washington state anti-SLAPP statute could be applied in federal court. In Intercon Solutions, Inc. v. Basel Action Network, et al., it reviewed a district court decision which held that the Washington state anti-SLAPP statute was “incompatible” with the Federal Rules of Civil Procedure and could not be applied in federal court. Although it ultimately affirmed dismissal of the anti-SLAPP motion on an alternative ground (because, in the interim, the Washington State Supreme Court ruled that state’s anti-SLAPP statute was unconstitutional), the Seventh Circuit ominously stated that “[f]ederal rules prevail in federal court” and that “Congress can alter federal pleading standards, . . . but states lack a comparable power.”
And, since the Abbas decision was handed down, another federal district court has concluded that a state anti-SLAPP statute does not apply in federal court. In Unity Healthcare, Inc. v. County of Hennepin, the Minnesota federal district court held that state’s anti-SLAPP statute “collides head-on” with Rule 56 because, among other things, “[t]he restrictive standard for discovery under the anti-SLAPP law is oil to the water of Rule 56’s more permissive standard” and “Minnesota’s anti-SLAPP law turns judges into pre-trial factfinders who must decide factual disputes by assessing credibility and weighing evidence, and they must do so without drawing inferences in favor of the nonmoving party. This standard is anathema to the standard under Rule 56.”
The growing split among the federal courts, together with the fact that Shady Grove (the decision that is fueling the arguments that state anti-SLAPP statutes do not apply in federal court) was an incredibly fractured decision, suggests that the Supreme Court needs to decide this issue sooner rather than later.
Decision Holding Washington State’s anti-SLAPP Statute Unconstitutional Could Impact DC anti-SLAPP Statute
Last month, the Washington Supreme Court held that state’s anti-SLAPP statute was unconstitutional because it required trial courts to weigh competing evidence – which was a function expressly reserved for the jury. With the District of Columbia’s Court of Appeals poised to potentially determine the appropriate standard for deciding a motion under the District’s anti-SLAPP statute, the Washington state decision is a potential game changer. Here’s why:
With the District of Columbia Circuit holding that the DC anti-SLAPP act does not apply in federal court, and at least four judges in the Ninth Circuit concluding that Circuit erred in applying state anti-SLAPP statutes in federal court, the need for a federal anti-SLAPP statute has become more urgent.
Accordingly, the “‘Securing Participation, Engagement, and Knowledge Freedom by Reducing Egregious Efforts Act of 2015” or the ‘‘SPEAK FREE Act of 2015” has been introduced in Congress. Notwithstanding its . . . interesting . . . name (seriously, who has to come up with the words to fit these acronyms?), the statute is a potential game-changer in this developing area of the law. Here are the details:
The DC Circuit held this morning that the DC anti-SLAPP statute does not apply in a federal court diversity case because “Federal Rules 12 and 56 answer the same question as the Anti-SLAPP Act’s special motion to dismiss provision” (the Erie issue). This is obviously big news as it provides an obvious opportunity for forum shopping, with plaintiffs filing suit in federal court, where the statute is now inapplicable, instead of Superior Court, where the statute applies.
According to the DC Circuit’s opinion, Federal Rules of Civil Procedure 12 and 56 address “the circumstances under which a court must dismiss a case before trial,” meaning that the DC anti-SLAPP statute, which imposes a higher burden, cannot apply:
Under the Federal Rules, a plaintiff is generally entitled to trial if he or she meets the Rules 12 and 56 standards to overcome a motion to dismiss or for summary judgment. But the DC Anti-SLAPP Act nullifies that entitlement in certain cases. Under the D.C. Anti-SLAPP Act, the plaintiff is not able to get to trial just by meeting those Rule 12 and 56 standards. The D.C. Anti-SLAPP Act, in other words, conflicts with the Federal Rules by setting up an additional hurdle a plaintiff must jump over to get to trial.
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In short, unlike the D.C. Anti-SLAPP Act, the Federal Rules do not require a plaintiff to show a likelihood of success on the merits in order to avoid pre-trial dismissal. Under Shady Grove, therefore, we may not apply the D.C. Anti-SLAPP Act’s special motion to dismiss provision.
Although the defendants argued that the standard under the anti-SLAPP act mirrors Rule 56, so that the anti-SLAPP statute does not conflict with the Federal Rules, the DC Circuit rejects this argument as contrary to the intent of the DC Council, and the language of the statute. The Court also rejects the defendants’ argument that the statute is akin to qualified immunity, holding that principle does not change the fact that the “procedural mechanism” for resolving the motion is different, and thus barred.
Most notably, the DC Circuit acknowledges that other courts, including the First, Fifth, and Ninth Circuits, have all held that anti-SLAPP statutes apply in federal court, notwithstanding Rules 12 and 56. It disagrees with these decisions, explaining that they are “not persuasive.”
Notwithstanding the DC Circuit’s agreement with Abbas that the DC anti-SLAPP statute does not apply in a federal court diversity case, the Court affirms dismissal of the Complaint on the basis that the questions posed in the article were not factual representations. It thus dismisses the Complaint under Rule 12(b)(6) – a motion that the defendants made below, but which the District Court held was moot when it granted the anti-SLAPP motion.
Takeaways: from a practical standpoint, as stated above, any defamation plaintiff that has the ability to file suit in DC federal court should do so because it will not be faced with an anti-SLAPP motion. This is a troubling concept, as we are likely to see more forum shopping of the type that we have already seen in other cases.
From a legal standpoint, the DC Circuit’s opinion sets up a direct circuit split with the First Circuit’s Godin v. Schencks opinion, which came after Shady Grove and held that Federal Rules 12 and 56 were not sufficiently broad as to prohibit application of the Maine anti-SLAPP statute in federal court. Stay tuned.
I have previously blogged about the defamation lawsuit between the Center for Advanced Defense Studies (C4ADS) and a Ukraine-based shipping company, Kaalbye Shipping International, in which Kaalbye alleged that that a C4ADS report about the shipments of Russian and Ukrainian arms defamed it. On Tuesday, the DC Superior Court granted C4ADS’s anti-SLAPP motion in a lengthy Opinion, concluding that Kaalbye had not provided evidence of damages and that the challenge statements were protected opinion, not defamatory or not made with actual malice. Here are three takeaways
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When Puff Daddy (n/k/a Diddy; f/k/a P. Diddy, Sean Combs, Puffy) rapped “Its all about the Benjamins,” I doubt he was thinking about the Forras v. Rauf case. (For background on the case, see prior posts here, and here, and here). But, now that the DC Circuit briefing is complete in that case, it is clear that the appeal really is all about the Benjamins! Let me explain.
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As we approach the fourth anniversary of the date the DC anti-SLAPP statute became effective, parties in several high-profile cases know exactly what Tom Petty & The Heartbreakers meant when they sang that “the waiting is the hardest part.” As I write, they wait for decisions in cases that have the potential to significantly – and materially – alter the DC legal landscape.
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