Its been a busy month in the Sherrod v. Breitbart case. On February 6, the Circuit issued a per curiam order asking Judge Leon to explain why he denied an anti-SLAPP motion filed by the defendants. Judge Leon complied last week, issuing a “Statement of Reasons.” Today, the Breitbart defendants responded to that filing.
In their submission, the Breitbart defendants argue that the “Statement of Reasons” show why its appeal should be entertained by the DC Circuit. They argue that the “retroactivity” reason identified by the District Court is contrary to the Superior Court’s decision in Lehan v. Fox, which held that the statute applied to pending actions.
They further argue that, while the District Court held that the anti-SLAPP statute is inapplicable in federal court under Erie, “this is not an issue at this stage of the appeal and thus should not prevent the appeal from proceeding” because Ms. Sherrod “expressly noted for purposes of her Motion to Dismiss the appeal that the Act applies in federal court.” In any event, the Breitbart defendants argue, the District Court erred when it held that Erie prevented the application of the anti-SLAPP statute in federal court, as numerous other courts have held otherwise.
Finally, while the Statement of Reasons explained that the anti-SLAPP motion was untimely, the Breitbart defendants argue that this was not raised by Ms. Sherrod in her motion or by the District Court at oral argument. Additionally, they argue, they obtained an extension of time to “answer, move, or otherwise plead” in response to the Complaint and, made their motion within this time frame, thus making it timely.