The plaintiff today filed her opposition to the anti-SLAPP motion filed by the defendants last month in the Sherrod v. Breitbart suit. In it, as I predicted last month, she first argues that the statute has no application to her suit because it did not become effective until one and half months after her lawsuit was filed, and cannot be applied retroactively.
According to the plaintiff, unless the statute is purely procedural (and she notes that the defendants have argued that it is not), or contains any indication that it was intended to have retroactive effect (which it does not, according to her), it applies prospectively only, and thus has no application to the case. Sherrod quotes from the statute’s legislative history and the defendants’ brief to argue that the statute has substantive elements and thus cannot be applied retroactively.
The plaintiff next argues, if the statute could be applied retroactively, that would mean it is purely procedural and that this fact would make it inapplicable in federal court under the Erie doctrine, which requires federal courts to apply federal procedural rules to cases pending in federal court. This is an especially clever argument by the plaintiff; in effect, she is forcing the defendants to elect whether they will argue that the statute is substantive (to overcome the Erie issue, but which is problematic for them on the retroactivity issue) or procedural (to overcome the retroactivity problem, but which is problematic for them on the Erie quandary). It will be interesting to see how the defendants respond to this “heads I win, tails you lose” argument.
The plaintiff also argues that, because the statute requires a moving party to file a special motion to dismiss within 45 days after service of the claim, the motion was not timely made because the complaint was served on February 12, 2011 and the motion was not filed until April 18, 2011.
Finally, she argues that she has demonstrated that she is likely to succeed on her claims and, for that reason, the motion should be denied.
Of the four arguments, the retroactivity and Erie arguments appear to pose the greatest threat to the defendants’ motion. The plaintiff’s opposition, essentially, argues that the defendants cannot prevail because, if the anti-SLAPP statute is procedural (which would allow it to be applied retroactively), it cannot be applied in federal court (under the Erie doctrine). On the other hand, if it is substantive (and thus can be applied in federal court), it cannot be applied retroactively. Thus, according to the plaintiff, “[d]efendants have created a Catch-22 for themselves: either the statute is partially substantive (or has substantive consequences) and is therefore not retroactive under D.C. law or it is purely procedural and inapplicable in federal court under Erie. Defendants cannot argue ‘procedure’ on the one hand and ‘substance’ on the other merely to suit their convenience.”