The defendants in the Sherrod v. Breitbart suit today filed their reply brief in support of their motion to dismiss the suit pursuant to DC’s recently-enacted anti-SLAPP statute. In response to the plaintiff’s argument that the statute has no application to her case, because the complaint was filed February 11, 2011, while the statute did not become effective until March 31, 2011, the defendants argue that the legislative history suggests that it was intended to apply to cases that were pending at the time the statute was passed, and thus applies here.
The defendants also argue that the plaintiff was on notice that the statute could be invoked in this lawsuit because it was passed by the DC Council on December 7, 2010; signed by the Mayor on January 18, 2011; and published in the DC Register on January 28, 2011. Finally, they cite decisions from California, Washington, Illinois and Utah applying their anti-SLAPP statutes to pending cases.
While acknowledging that the statute’s legislative history refers to “substantive” rights at various points, the defendants argue that “the substantive rights are actually the creation of expedited procedures for quickly disposing of SLAPP suits,” and that, the anti-SLAPP statute “can fairly be characterized as a remedial procedural statute” which has retroactive effect.
As I noted in discussing the plaintiff’s opposition to the defendants’ anti-SLAPP motion, the plaintiff had cleverly attempted to box in the defendants by arguing that the statute could not be both procedural (which would allow it to be applied retroactively, but posed a problem under Erie), and substantive (which responded to the Erie issue, but was problematic from a retroactivity perspective).
In the defendants’ reply, as explained above, they argued that the statute was procedural, and thus could be applied to the Sherrod suit, for a variety of reasons. While this argument would appear to cause difficulties under Erie, the defendants’ response is that the “[f]ederal courts have repeatedly recognized that statutes considered ‘procedural’ for retroactivity purposes are not automatically barred in federal court, and accordingly have routinely applied state anti-SLAPP statutes in federal court. They cite numerous decisions from various courts in support of this argument and explain that the two Massachusetts district court decisions cited by the plaintiff were effectively overruled last year by the First Circuit. (I wonder if any of the decisions were ones where the SLAPP movants were attempting to apply the statute both retroactively and in federal court?)
Next, with respect to the plaintiff’s timeliness argument (she argued that the motion was not timely because the statute requires it to be brought within 45 days after service of the claim and, while the complaint was served February 11, the motion was not made until April 18, 2011), the defendants argue that they sought, and received, extensions of time to file a response, and that those extensions make their April 18 filing timely. Finally, the defendants argue that the plaintiff has not shown she is likely to prevail on the merits.
It will be interesting to see how the Court rules on the various arguments. As I have previously written, the retroactivity and Erie arguments are the most problematic for the defendants in my view. While the defendants are correct that virtually every federal court has held that anti-SLAPP statutes apply in federal court and do not pose a problem under Erie, those decisions have generally not involved cases where the defendant was also attempting to apply the statute retroactively. While the defendants here have done an admirable job of attempting to show that it applies to pending suits, their two arguments could be construed as inconsistent or, worse, in conflict with each other.