A series of filings in response to the defamation suit filed by Yasser Abbas against the Foreign Policy Group and Jonathan Schanzer have now focused the DC federal court on the same question pending before the DC Circuit in Sherrod v. Breitbart: does the DC anti-SLAPP statute apply in federal court?
Last month, Abbas filed his opposition to the defendants’ anti-SLAPP motion. (On the same day, Abbas filed a separate opposition to the defendants’ 12(b)(6) motion). As I predicted, Abbas’ opposition primarily argues that the anti-SLAPP statute is inapplicable in federal court, relying almost entirely on Judge Wilkins’ decision in 3M v. Boulter.
The opposition first argues that the suit is not the type of “grassroots activism” that was contemplated when the DC anti-SLAPP statute was enacted. While this may be an accurate statement, it is beside the point because, if the requirements of the statute are satisfied, it applies.
Realizing this, the majority of the opposition is devoted to arguing that the statute cannot be applied in federal court. Repeatedly citing and quoting from the 3M decision, Abbas argues that the DC anti-SLAPP statute cannot be used in federal court because it is inconsistent with Rules 12 and 56 of the Federal Rules of Civil Procedure. Abbas points to the fact that the anti-SLAPP statute allows the Court to consider material beyond the four corners of the complaint; to make an assessment of whether the plaintiff is likely to prevail; and dictates that dismissal must be with prejudice, as examples of how the anti-SLAPP statute conflicts with the Federal Rules of Civil Procedure.
Abbas writes that Judge Wilkins’ decision is “devastating to [the defendants’] position” and notes that they “relegate[d]” it “to a footnote,” tacitly suggesting that the defendants avoided addressing it in their opening brief. But Abbas then does the same thing, blithely dismissing Judge Collyer’s decision in Farah v. Esquire (which applied the anti-SLAPP statute in federal court) and Judge Leon’s Statement of Reasons in Sherrod v. Breitbart (which held that “defendants’ own briefs and the legislative history make clear that the DC Anti-SLAPP Act is substantive”), without any extended analysis or discussion. As this brief will be Abbas’s only written submission on this issue, I was surprised it didn’t more squarely address these and the many other decisions that apply SLAPP statutes in federal court.
The remainder of the opposition summarizes the reasons why Abbas is opposing the Rule 12(b)(6) motion and maintains that he is likely to prevail on the merits.
Before the defendants filed their reply brief, the District of Columbia sought, and received, permission to file an amicus brief in support of the argument that the anti-SLAPP statute applies in federal court. Its brief in Abbas is almost identical to the amicus brief it filed in the Sherrod v. Breitbart appeal. It chronicles the Supreme Court and DC Circuit jurisprudence since Erie, arguing persuasively that both courts have consistently looked to apply state law in federal diversity actions by interpreting the state statutes in a way that does not conflict with federal procedural rules.
It argues that, on those rare occasions where the state statutes have been held to conflict with federal procedural law, the conflict was unavoidable. Against this landscape, the amicus brief argues, the DC anti-SLAPP statute can operate “side by side” with Federal Rules 12 and 56 and, as a consequence, applies in federal court. It cites and extensively analyzes the decisions of the other federal circuit courts to decide this issue, including the First Circuit’s 2010 decision in Godin v. Schnecks.
The brief then attacks the 3M decisions (both the February 2, 2012 Opinion in response to the Davis anti-SLAPP motion and the October 24, 2012 Opinion in response to the Boulter anti-SLAPP motion), arguing that the historical materials, “mid-20th century decisions,” and other precedent cited in that decision do not support its conclusion. The brief is unsparing in its criticism of the 3M decisions, asserting that “Supreme Court precedent does not support the reasoning or conclusion of 3M,” “[a]s with the other authorities relied on in the 3M rulings, Byrd likewise does not support the conclusions reached there,” “contrary to the 3M decision’s intimation, Ninth Circuit precedent likewise does not support that decision’s conclusion,” “[t]he 3M decision’s secondary reason for refusing to apply the Act is likewise unpersuasive,” and stating that one of the reasons cited for the 3M decision is “flatly incorrect.”
And it ends on a strong note, noting that one of the purposes of Erie is to avoid inequitable results and forum shopping, and that the opposite would happen if the anti-SLAPP statute was applicable in the DC Superior Court, but not in federal court:
if plaintiffs are subject to the heightened burden of proof set forth in the Act if they file their case in local court, but can avoid being subject to those standards if they file in federal court, that result will promote precisely the type of forum-shopping Erie was designed to avoid.
The brief notes that one plaintiff has already attempted to forum shop, and that this conduct confirms why the statute must apply in federal court.
The defendants’ reply brief echoes many of these points. First, however, it addresses Abbas’s assertion that this suit is not the type contemplated by the DC anti-SLAPP statute (because it is not “grassroots activism”), arguing that this is irrelevant: “[n]owhere in the Act states that its applicability is limited in any such way, and with respect to FP, courts have already applied the statute to media entities. . . . In fact, the only criteria for invoking the statute is whether Defendants engaged in ‘an act in furtherance of the right of advocacy on issues of public interest.’”
On the initial issue of whether the anti-SLAPP statute applies in federal court, the defendants’ reply brief, like the amicus brief submitted by the District of Columbia, focuses on the federal appellate court decisions holding that state anti-SLAPP statutes can be applied in federal court without conflicting with Rule 12 and 56. The brief also cites several federal district court decisions that resolved motions under SLAPP statutes and Rules 12 or 56 as evidence that the remedies can coexist, including the first 3M decision that, while denying the anti-SLAPP motion, granted a Rule 12(b)(6) motion. Like the District’s amicus brief, the defendants’ reply brief argues that applying the statute in federal court furthers Erie’s aim of avoiding forum shopping and inconsistent results.
Turning to the merits, the defendants’ reply brief argues that Abbas’s opposition: (a) never showed that the challenged statements were false; (b) did not show that the challenged statements are not protected opinion; (c) confirmed that he is a limited purpose public figure; and (d) did not show that the defendants made the challenged statements with the requisite fault. It makes the same arguments in its reply brief in support of its Rule 12(b)(6) motion.
The next step is for the court to rule on the pending motions. Because the threshold question – of whether the SLAPP statute applies in federal court – is pending before the DC Circuit in the Sherrod v. Breitbart appeal, where oral argument is scheduled for March 15, 2013, one scenario is that the Abbas court waits for that decision. (Of course, the Abbas court could also rule on the companion 12(b)(6) motion).
On the other hand, because the Sherrod appeal could turn on several other issues (including whether there is a right to appeal from the denial of an anti-SLAPP motion, whether the statute applies to a lawsuit filed six weeks before its effective date, and whether the anti-SLAPP motion there was timely made), there is no guarantee that a decision in Sherrod will resolve the Erie question. And even if it does, there is no timetable for when the DC Circuit would issue such a decision.