A decision by the Ninth Circuit Court of Appeals earlier this week could impact three cases currently on appeal to the DC Circuit involving the DC anti-SLAPP statute.
In Metabolic Research, Inc. v. Ferrell, et al., an attorney (Mr. Ferrell) sent a pre-suit letter to Metabolic Research and others which they interpreted as extortion or blackmail. They responded by filing a suit against Mr. Ferrell and his clients for extortion and related torts. In turn, Mr. Ferrell filed a special motion to dismiss under Nevada’s anti-SLAPP statute. The federal district court denied the anti-SLAPP motion, and Mr. Ferrell appealed to the Ninth Circuit.
The first interesting point in the Ninth Circuit’s opinion was its sua sponte observation about the applicability of the anti-SLAPP statute in federal court: “As neither party raised the issue in this appeal, we do not decide whether the Nevada anti-SLAPP statute is available to litigants proceeding in federal court. Cf. Lockheed Missiles & Space Co., 190 F.3d at 970-74.”
The availability of the DC anti-SLAPP statute in federal court – the so-called Erie issue – is, of course, directly at issue in the three cases now on appeal. In both Sherrod v. Breitbart and 3M v. Boulter, the judges held that the statute was not available in federal court, while in Farah v. Esquire, the court held that it could be utilized by a moving party. The Ninth Circuit’s unrequested observation is interesting, to say the least.
The remainder of the Ninth Circuit’s opinion deals with the issue of whether the denial of a special motion under the Nevada’s anti-SLAPP statute is immediately appealable. (In both Sherrod and 3M, the appellees have argued that the appeals are premature and must be dismissed.)
The court noted that it had previously held that a denial of a special motion under Oregon’s anti-SLAPP law was not immediately appealable, while the denial of a special motion under California’s anti-SLAPP law was immediately appealable as a collateral order. This difference, the court held, is because different statutes implicate different rights. According to the court, “the denial of a motion to strike brought pursuant to California’s anti-SLAPP statute satisfied the collateral order doctrine because the purpose of the California law was to provide citizens with a substantive immunity from suit.” “In contrast, . . . Oregon’s failure to provide for an immediate appeal at that time indicated its legislature’s belief that the normal appeal process was adequate to vindicate the anti-SLAPP right.”
Turning to the Nevada anti-SLAPP statute, the court held “its underlying values and purpose are satisfied without resort to an immediate appeal because, unlike California’s, it does not furnish its citizens with immunity from trial.” The court focused on the fact that the Nevada statute does not contain the unequivocal right to appeal language found in the California statute, on which it was modeled. The court buttressed its opinion by noting that the Nevada statute defines the protected right as immunity “from civil liability” instead of immunity from suit or trial. Finally, held the court, if an unsuccessful SLAPP movant prevailed on appeal after discovery or trial, it could still recover its costs and fees.
While the court could have stopped with its holding that the Nevada anti-SLAPP statute does not provide for immediate appeal of an unsuccessful motion, it identified two avenues potentially available to unsuccessful movants:
there are two remedies apart from collateral order appeal available to enable an appellate court to address particularly injurious or novel issues. First, a litigant in federal court may ask the district court to certify and the court of appeals to accept an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) as involving controlling questions of law the resolution of which will speed the termination of the litigation. Secondly, in truly extraordinary cases, a writ of mandamus is available.
As one commentator has noted, the court’s dicta “seems to be almost inviting federal litigants to use these alternative mechanisms to get true Anti-SLAPP protection” by seemingly “lay[ing] out an instruction manual for litigants (at least in Federal Court) who seek review of lower court decisions, when an Anti-SLAPP statute fails to provide a right to an interlocutory appeal.” It will be interesting to see if a DC anti-SLAPP movant invokes one of these mechanisms.