Tag Archives: DC Circuit

Three Takeaways from the DC Circuit’s Farah v. Esquire Decision

The DC Circuit’s decision in Farah v. Esquire Magazine turned out to be a dud from an anti-SLAPP perspective.  The court affirmed the district court’s dismissal of Farah’s Complaint, but did so under Rule 12(b)(6), thus mooting any consideration of arguments made under the DC anti-SLAPP act. The opinion is not a great surprise.  In its brief to the DC Circuit, Esquire suggested that, because the Complaint was also dismissed under Rule 12(b)(6), the district court’s decision could be affirmed on this alternative basis.  And the questions at oral argument (link here) did not focus on the anti-SLAPP act. Nevertheless, …

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Farah v. Esquire: a Primer

I have previously blogged about the panel that will be hearing the Farah v. Esquire appeal on October 3.  Here’s a brief summary on the relevant background facts, the proceedings in the district court and the pertinent issues on appeal.

Farah v. Esquire Panel Has Significant Experience in First Amendment Cases

The DC Circuit has announced that the Farah v. Esquire appeal will be heard on October 3, 2013 before Circuit Judges Rogers and Brown and Senior Circuit Judge Williams.  In a separate post, I will summarize the background facts giving rise to the case, the proceedings in the district court and the issues on appeal.  For now, however, I thought I would take a quick look at prior defamation/libel/First Amendment decisions involving these judges.  As explained below, for two of the judges on the panel, there will be a sense of déjà vu when the argument begins on October 3. 

DC Circuit Affirms Denial of anti-SLAPP Motion in Sherrod v. Breitbart on Timeliness Grounds

This morning, the DC Circuit issued a short opinion in which it affirmed the District Court’s ruling in Sherrod v. Breitbart, which had denied the defendants’ anti-SLAPP motion.  Because the District Court’s ruling was not a final judgment ending the action, the DC Circuit first considered whether it even had jurisdiction to hear the appeal.  After canvassing decisions from other circuits and a “terse, unpublished order” from the DC Court of Appeals, the court sidestepped the question because it found that its precedent on another issue completely resolved the case.  In other words, the court assumed (without deciding) that it had …

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Sherrod Oral Argument Suggests DC Circuit Might Not Resolve Erie Issue

Unfortunately, I was not able to attend this morning’s oral argument in the Sherrod appeal.  The Legal Times’ summary is here.  The Washington Post summary is here.  And another summary is here.  Both the Legal Times and the Washington Post articles point out that there are a variety of other issues in Sherrod that could prevent us from getting a definitive answer on whether the statute can be used in federal court, including whether the motion was timely made, whether it applies to conduct that pre-dated the statute’s effective date, or whether it can be immediately appealed (I’ve discussed all three issues here).   …

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Will Farah v. Esquire Appeal Resolve “Erie” Question?

While the Sherrod v. Breitbart appeal has attracted a lot of attention at the DC Circuit, there is another case that could resolve whether the DC anti-SLAPP statute applies in federal court: Farah v. Esquire.  There, the plaintiffs/appellants are appealing the district court’s decision granting the defendants’ anti-SLAPP and 12(b)(6) motions and dismissing their false light, defamation, and Lanham Act causes of action. As alleged in the Complaint, a May 2011 post on Esquire’s politics blog contained fictional statements by publisher Joseph Farah that he would destroy the first-run print of Jerome Corsi’s book, Where’s the Birth Certificate? The Case …

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Sherrod v. Breitbart Appeal Ready for Oral Argument

The Sherrod v. Brietbart appeal is now fully briefed (opening brief here, opposition brief here, and reply brief here) and ready for the oral argument, scheduled for March 15, 2013.  (The case has also attracted amicus briefs, including from the District of Columbia, the ACLU and Public Citizen, and a host of news organizations).  The threshold question in Sherrod is whether the denial of an anti-SLAPP motion is immediately appealable under the collateral order doctrine of Cohen v. Beneficial Loan Corp.  (The DC Court of Appeals recently held that it was not).  Under Cohen, the appellants must show that the …

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Will DC Court of Appeals’ Decision Impact Sherrod Appeal?

I have learned that, last month, the DC Court of Appeals dismissed the appeal of an order denying an anti-SLAPP motion.  The court held that there was no interlocutory review under the statute and that the order was not appealable under the Cohen collateral order doctrine.  This order, and other rulings in the same suit, could have major ramifications for the Sherrod v. Breitbart appeal and the other pending anti-SLAPP motions.  

Roundup on Pending Cases Involving the DC anti-SLAPP Statute

After a period of relative quiet, there has been a flurry of activity in the District of Columbia federal and state courts in cases involving the DC anti-SLAPP statute.  Here’s a summary of where the various cases stand:              •           Sherrod v. Breitbart:  The case drawing the most attention is the pending appeal in the United States Court of Appeals for the District of Columbia Circuit in Sherrod v. Breitbart.  There, the defendants/appellants have filed their opening brief; the District of Columbia has filed an amicus brief; Public Citizen and the American Civil Liberties Union of the Nation’s Capital have filed …

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DC federal court reiterates that anti-SLAPP statute inapplicable in federal court

While 3M and Lanny Davis were resolving their claims, the judge presiding over the district court portion of the case resurrected his February 2012 decision against another one of the defendants in that same case and held – again – that the DC anti-SLAPP statute does not apply in federal court.