After a brief – and unsuccessful – return to the federal district court, the appellants in the Forras v. Rauf case (Vincent Forras and Larry Klayman) have filed their opening brief in the DC Circuit.
As I predicted, the lead argument is that the federal district court erred in considering the defendants’ SLAPP motion because it was made more than 45 days after the suit was filed in federal court. This was, of course, because Forras/Klayman first filed their suit in DC Superior Court, and then forum shopped it to federal court, believing that other judges would follow the 3M court and hold that the anti-SLAPP statute did not apply in federal court. Because the same suit was pending in two courts, the federal court stayed the action until the Superior Court suit was finally dismissed. By then, however, more than 45 days had elapsed.
Notwithstanding the equities on the side of the defendants, Forras/Klayman appear to have a good argument. In Sherrod, the DC Circuit held that the federal district court could not extend the statutory deadline, and that a motion made beyond the 45 days came too late. It is not clear if the appellants’ chicanery can toll the statutory deadline.
Their remaining arguments are not as strong. The appellants argue that: (a) application of the anti-SLAPP statute violates their Seventh Amendment right to a jury trial; (b) the statute does not apply in federal court (the “Erie” issue); (c) the statements were not made in connection with an issue of public interest; (d) this is not a “typical” SLAPP suit; and (e) the fees sought by the defendants are excessive.
At the district court, the defendants moved under a variety of theories, including that there was no subject-matter jurisdiction, the suit was time-barred, the challenged statements were privileged, among others. Even if the DC Circuit holds that the anti-SLAPP motion was made too late, that will not change the ultimate outcome, which is that the plaintiffs’ complaint will go away. The only real question is whether the plaintiffs will have to pay the defendants’ attorneys’ fees.
One more thing: the appellants’ Seventh Amendment challenge to the DC anti-SLAPP statute has prompted the DC Attorney General to move to intervene to defend the constitutionality of the statute. I would expect it to file a brief similar to that filed in Adelson v. Harris, except with the possible additional argument that the appellants waived the Seventh Amendment argument by not raising it in the district court.