As we approach the fifth anniversary of the date the DC anti-SLAPP statute became effective, recent decisions have me wondering if we are witnessing increased hostility against anti-SLAPP statutes nationwide?
One of the interesting things about the Doe v. Burke II appeal is the Superior Court’s reasoning that, although the complaint was dismissed under the DC anti-SLAPP statute, no attorneys’ fees were warranted because the case was not a “classic” SLAPP. The decision struck me as interesting because numerous movants have argued that their case is a “classic” or “typical” SLAPP. As I explain below, while every movant undoubtedly would like to argue that its case presents a “classic” SLAPP, routinely doing so has the potential to distract the court and could result in legitimate anti-SLAPP motions being denied because the court focuses on whether the case is a “classic” SLAPP, instead of focusing on whether it satisfies the requirements of the statute.
After my post on the Vermont Supreme Court’s decision, requiring all motions under Vermont’s anti-SLAPP statute to be based upon speech made in connection with an issue of public interest, a reader sent me a decision from a Louisiana appellate court, which imposed an identical requirement under Louisiana’s anti-SLAPP statute.
Does a party moving under the DC anti-SLAPP statute need to show that the claim arises from a statement made in connection with an issue of public interest? While the text of the DC anti-SLAPP statute suggests the answer is no, the Vermont Supreme Court, interpreting Vermont’s virtually-identical anti-SLAPP statute, recently held that the answer is yes.
Earlier this year, in Henne v. City of Yakima, the Washington State Supreme Court held that the City of Yakima could not move under that state’s anti-SLAPP statute where it was the recipient – rather than speaker – of the challenged speech. It is not clear if the outcome would have been different under the DC anti-SLAPP statute.
The facts are as follows:
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: