I attended the Abbas v. Foreign Policy Group argument at the DC Circuit last week. (You can listen to the argument here). Here are my impressions.
I agree with Politico that it seems unlikely that the Circuit will reverse the district court’s dismissal of the complaint as none of the three members of the panel quarreled with the district court’s reasoning. Rather, the central question in the appeal now appears to be whether the DC Circuit needs to conclusively decide whether the DC anti-SLAPP statute applies in federal court (the “Erie” issue) or whether it could sidestep that issue and instead affirm on the basis that the Complaint failed to state a claim under Rule 12(b)(6).
While Abbas’s counsel urged the Court to decide, once and for all, whether the DC anti-SLAPP statute applies in federal court, Foreign Policy Group’s counsel suggested the Court had three options: (a) hold that the statute applies in federal court, notwithstanding the Court’s obvious concerns that the statute’s different rules (including that it limits discovery, potentially allows a court to resolve disputed issues, and requires dismissal unless the non-movant shows he is “likely to prevail”) appeared to be inconsistent with the Federal Rules; (b) find that, in this case, dismissal under the anti-SLAPP statute was proper because there were no disputed issues and Abbas did not request discovery; or (c) affirm under Rule 12(b)(6), in which case Foreign Policy Group would return to the district court and seek fees, likely resulting in the parties returning to the Circuit on the Erie issue.
My guess is that the Court is going to take option two: conclude that, because Abbas did not request discovery and did not identify any disputed issues, there was no obstacle to applying the DC anti-SLAPP statute in federal court in this case, and affirming on that basis. The Court will leave, for another day, whether the anti-SLAPP statute can be applied when it would require the court to decide disputed issues or where discovery is requested/denied.
One moment of levity: during oral argument, Foreign Policy Group’s attorney argued that, to avoid a conflict with the Federal Rules of Civil Procedure, the DC anti-SLAPP statute’s discovery and “likely to prevail” standards could be interpreted to mirror the standards in Rules 12 and 56 of the Federal Rules of Civil Procedure, despite the fact that the DC anti-SLAPP statute uses different language. Judge Srinivasan suggested this was a “heroic” reading of the statute, which generated laughter in the courtroom.