The defendants in the Farah v. Esquire suit today advised the Court of Judge Leon’s “Statement of Reasons” issued last week in the Sherrod v. Breitbart matter with a “Notice Regarding New Authority.” In it, they note that Judge Leon explained that he denied the anti-SLAPP motion there, in part, because he found it could not be applied retroactively. The Esquire defendants assert that retroactivity is not an issue in their case because both the publication and the resulting lawsuit were after the statute’s effective date.
The Esquire defendants also argue that Judge Leon’s “opinion in context suggests that because the Anti-SLAPP Act is the substantive law of the District of Columbia, it must be applied in diversity (just not to actions filed before the statute was enacted).”
The same filing acknowledges Judge Wilkins’ lengthy opinion in 3M v. Boulter, in which he held that, because the anti-SLAPP statute conflicts with Rules 12 and 56 of the Federal Rules of Civil Procedure, it could not be applied in federal court. The Esquire defendants argue that “this case presents no conflict between the Anti-SLAPP Act and the Federal Rules of Civil Procedure” because, to resolve the motion, the court does not need to consider matters outside the pleadings. (Of course, the Farah plaintiff previously filed his own pleading regarding Judge Wilkins’ opinion.)