On the same day that the DC Circuit issued its decision in Sherrod v. Breitbart, which avoided deciding the “Erie” question by resolving the case on timeliness grounds, another DC federal court judge held that the DC anti-SLAPP statute can be applied in federal court, and granted the defendants’ anti-SLAPP motion. (For prior posts on the background and arguments in the Boley case, see here and here).
The court’s opinion in Boley v. Atlantic Monthly Group acknowledges that, in 3M v. Boulter, Judge Wilkins held that the DC anti-SLAPP Act could not apply in federal court. It does not follow the 3M decision, however, explaining that:
[w]hile thoroughly reasoned, 3M Co. conflicts with the weight of authority. Indeed, three federal circuit courts have deemed it necessary to enforce state anti-SLAPP laws in diversity actions, finding no conflict between those statutes’ special motion to dismiss provisions and Federal Rules of Civil Procedure 12 and 56. . . . Finding these cases persuasive, the Court adopts their reasoning and therefore will apply the Anti-SLAPP Act’s special motion to dismiss provisions in this case.
Although Judge Collyer also held that the DC anti-SLAPP statute applies in federal court in Farah v. Esquire, she held that the suit would also have been dismissed under Federal Rule of Civil Procedure 12. Indeed, on appeal, the defendants have argued that the DC Circuit can avoid resolving whether the DC anti-SLAPP statute applies in federal court and can simply affirm the district court’s decision under Rule 12(b)(6).
Boley is thus noteworthy because the dismissal is only under the anti-SLAPP Act. Accordingly, if the Farah court accepts the defendants’ invitation to affirm on the basis of Rule 12(b)(6), Boley will directly present the Erie question for the appellate court, assuming that it is appealed.
The other thing of note from the Boley decision is that the court, in determining whether Boley could overcome the defendants’ anti-SLAPP motion, borrowed from California law:
Because the defendants have made a prima facie showing that Boley’s defamation claim “arises from an action in furtherance of the right of advocacy on issues of public interest,” the burden now shifts to Boley “to demonstrate that the claim is likely to succeed on the merits.” § 16-5502(b). The Anti-SLAPP Act does not define the contours of this standard, so the Court again views as instructive pertinent caselaw from California.
As I wrote last month, when the DC Superior Court also borrowed California’s law on the applicable standard, this development is noteworthy because numerous parties have argued that the California “probability” of success standard is lower than DC’s “likelihood” of success standard. It will be interesting to see if the “probability” standard becomes the DC standard or if anti-SLAPP movants are successful in persuading DC judges that the DC standard is a more difficult standard to satisfy.
The remainder of the Boley opinion is relatively routine. The court holds that the suit arises from an act in furtherance of the right of advocacy on issues of public interest and that Boley is unlikely to show that he can prevail on the merits because the statements were privileged, were not verifiable as fact, or were not made with the requisite intent.