The plaintiffs’ primary argument is that the subject of the blog posting was not, as the defendants maintain, an issue of public interest, but was instead motivated by “a desire to harm Plaintiffs commercially as well as their reputations.” According to the plaintiffs, “the substance giving rise to Plaintiffs’ claims are commercial issues and not a matter of public interest” that fall outside the scope of the statute.
The plaintiffs next argue that their lawsuit is not the type of “chilling litigation” that the anti-SLAPP statute is intended to guard against because it was not brought “to obtain an ‘economic advantage over the defendant,’ but rather to vindicate a legally cognizable right.”
Citing two Massachusetts federal court decisions, plaintiffs next argue that the anti-SLAPP statute is procedural in nature and, as a result, does not apply in federal court under the Erie doctrine (which requires federal courts to apply federal procedural law to cases in federal court). [I believe that these are the same federal court decisions cited by the plaintiffs in the Sherrod case, which the defendants there argued had been effectively overruled by the First Circuit last year].
The plaintiffs argue that the statute creates procedural mechanisms for resolving a case, and is thus procedural. They also argue that, because the statute’s procedural mechanism “conflicts” with the Federal Rules of Civil Procedure (by shifting the burden to the plaintiff to demonstrate a meritorious claim), it cannot apply in federal court.
Finally, in a footnote, the plaintiffs cite to the opposition filed by Dan Snyder in his suit against the City Paper and its reporter in DC Superior Court, where he argued that the anti-SLAPP statute violates the DC “home rule.” Although it is not abundantly clear, it appears that the plaintiffs are adopting Snyder’s argument.