Monthly Archives: November 2011

District of Columbia and Defendants File Response to 3M’s Motion to Strike Anti-SLAPP Motion

Both the District of Columbia and the Davis defendants today filed briefs in response to the motion to strike filed by the plaintiff in the 3M v. Boulter case last month. The District of Columbia’s brief responds directly to the Home Rule and Erie arguments made by the plaintiff in its motion to strike the anti-SLAPP motion filed by the Davis defendants. The brief explains that, in the District of Columbia, legislation is subject to review by Congress, so that the Court must be especially cautious and deferential in assessing its validity. It argues that the provision relied upon by …


DC Attorney General Moves To Intervene In Third Case To Defend Constitutionality of Anti-SLAPP Statute

The DC Attorney General today moved to intervene in the Dean v. NBC Universal case “solely for the limited purpose of presenting argument to defend the validity of the Anti-SLAPP Act of 2010, a statute enacted by the unanimous vote of the DC Council and signed by Mayor Gray that sat before Congress for the required period of review and took legal effect earlier this year.” This is the third suit in which the DC Attorney General has moved to intervene to defend the constitutionality of the statute. In August 2011, it moved to intervene in the Snyder suit. That …


Judge overseing 3M v. Boulter suit orders 3M to file “substantive response” to anti-SLAPP Motion

The judge presiding over the 3M v. Boulter case today issued an order denying the 3M cross-motion for discovery and ordering it to file a “substantive response” to the anti-SLAPP motion filed by the Davis defendants. The Order states that, “[i]f in opposing the Special Motion, Plaintiff contends that the Court should not grant the Special Motion without allowing Plaintiff the opportunity to take discovery, Plaintiff must set forth with particularity and specify precisely what targeted topics and/or categories of discovery it needs to defeat the Special Motion, as well as what that discovery will likely show.” Under the DC …


Sherrod Maintains That Breitbart Appeal Must Be Dismissed in Reply Brief to DC Circuit

The Sherrod plaintiff today filed her reply brief in support of her motion to have the Breitbart defendants’ appeal dismissed or have the District Court’s order summarily affirmed. According to Ms. Sherrod, a cursory review of the statute shows that it does not provide immunity from suit or trial and, as such, a denial of an anti-SLAPP motion cannot be immediately appealed under the collateral order doctrine: “[t]he key point here is that the collateral-order doctrine requires Defendants to establish a right not to stand trial, but the Anti-SLAPP Act provides no such thing.” The same review of the statute …


Breitbart Defendants Assert That Dismissal of Appeal Would Be Improper by DC Circuit

The Breitbart defendants filed their response to the motion to dismiss or for summary affirmance filed last month by Ms. Sherrod. Responding first to Ms. Sherrod’s motion for summary affirmance, they argue that, under controlling Circuit precedent, such a motion must be denied where the appeal involves an issue of first impression. (Indeed, as I noted in discussing the Sherrod filing last month, this admonition is contained in the Circuit’s handbook). The defendants argue that, because this is indisputably a case of first impression (involving, for example, whether the denial of an anti-SLAPP motion can be immediately appealed; whether the …


DC Attorney General Intervenes in 3M Suit

As I predicted earlier this week, the 3M plaintiff’s attack on the constitutionality of the anti-SLAPP statute, in response to an anti-SLAPP motion filed by some of the defendants in that case, has prompted the DC Attorney General to move to intervene in the case for the purpose of defending the statute. The law strongly supports granting the DC Attorney General’s motion to intervene, and I anticipate that the Court will grant its motion.