Judge Leon today issued a “Statement of Reasons” explaining why he denied an anti-SLAPP motion filed last year by the defendants in the Sherrod v. Breitbart lawsuit. The filing was in response to an order from the DC Circuit last week, which requested him to explain the basis for his minute order last year denying the anti-SLAPP motion.
In the filing, Judge Leon explains that the motion was denied for three reasons. First, the lawsuit was filed six weeks before the statute became effective and there is no indication that it was intended to apply retroactively. The court accepts the plaintiff’s position that “the defendants’ own briefs and the legislative history make clear that the D.C. Anti-SLAPP Act is substantive” and holds that “[b]ecause the statute is substantive – or at the very least, has substantive consequences – and there is no clear legislative intent of retroactivity, defendants’ motion must be denied.”
Second, the court finds that, even if the statute is purely procedural, it would be inapplicable in federal court, which is required to apply federal procedural law under Erie. Finally, the court finds that the motion was not timely made.
When the DC Circuit remanded the record to the district court, it indicated that, after the issuance of the “Statement of Reasons,” the record was to be returned to the DC Circuit for consideration of the motion filed by the plaintiff (seeking summary affirmance) and the defendants (seeking summary reversal). Presumably that is the next step in this litigation.