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 statute applies to actions filed before its effective date; and whether the District Court’s order was correct).
Turning to the issue of whether the denial of an anti-SLAPP motion is immediately appealable, the Breitbart defendants argue that it is, citing decisions from California and Louisiana holding that the collateral order doctrine applies to such appeals. According to the Breitbart defendants, the anti-SLAPP statute protects parties from suit (and not just damages) and this right is lost if a party needs to proceed through trial before appealing an adverse decision.
Finally, the Breitbart defendants argue, the anti-SLAPP statute indisputably applies to pending suits and, to the extent the District Court held otherwise, it was wrong.