After the DC Circuit issued its decision in Abbas v. Foreign Policy Group last year, holding that the DC anti-SLAPP statute does not apply in a federal court diversity case (and disagreeing with every other federal appellate court to decide the issue of whether a state anti-SLAPP statute applies in federal court), I’ve been watching to see if Abbas was an outlier, or the beginning of a trend. The next few months should go a long way towards giving us that answer. Here’s why.
Even before Abbas, several judges on the Ninth Circuit expressed their view that two of that court’s seminal anti-SLAPP decisions – holding that California’s anti-SLAPP statute applies in federal court and that the denial of an anti-SLAPP motion is immediately appealable under the collateral order doctrine – were wrong, and should be reversed. At least two Ninth Circuit judges still feel the same way, as evidenced by their concurring opinions in Travelers Cas. Ins. Co. of America v. Hirsh.
There, Judge Kozinski again urged his colleagues to revisit their prior decisions, characterizing them as a “mistake,” “out of step,” and “wrong.” Judge Gould joined Judge Kozinski’s concurrence and went further, explaining that, while he had previously agreed with a right to immediate interlocutory review from the denial of an anti-SLAPP motion, he now concluded that position was incorrect and was “reced[ing] from it.” It remains to be seen if these judges can convince a majority of their colleagues to their position.
Over in the Tenth Circuit, in Los Lobos Renewable Power v. Americulture, Inc., a New Mexico federal district court followed the Abbas court’s reasoning and held that the New Mexico anti-SLAPP statute did not apply in a federal court diversity action because it conflicts with the federal rules of civil procedure. The losing party has appealed that decision, arguing that immediate appellate review is available under the collateral order doctrine and that the New Mexico anti-SLAPP statute does not directly collide with, and is thus not foreclosed by, the federal rules of civil procedure.
Also in the Tenth Circuit, a party who successfully defeated an anti-SLAPP motion brought under the California anti-SLAPP statute (but decided by a Utah federal district court), is arguing that there is no right to interlocutory review under the collateral order doctrine, and that, in any event, the statute does not apply in a federal court diversity action.
Meanwhile, earlier this year the Second Circuit held that the collateral order doctrine did not provide jurisdiction to immediately review a New York federal court order denying an anti-SLAPP motion (brought under the California anti-SLAPP statute), and did not vest it with jurisdiction to immediately review a Vermont federal court order denying an anti-SLAPP motion (brought under the Vermont anti-SLAPP statute) because, while the collateral order doctrine requires the appealed issue to be “completely separate from the merits of the action,” in both cases, the review would require the court to examine both the underlying allegations and the parties’ competing evidence, which were issues intertwined with the merits of the claim. Both panels specifically noted that they were not deciding if the state anti-SLAPP statutes were even applicable in federal court.
Across the country, the Fifth Circuit has assumed, on at least two occasions, that the Texas anti-SLAPP statute applies in federal court, without expressly deciding the issue. Its decision to do so a third time, earlier this year, prompted a strong dissent, which maintained that the Abbas court was correct and that the Texas statute conflicts with the federal rules of civil procedure, and thus should not apply in federal court.
Finally, in January, the Eleventh Circuit is scheduled to hear argument in Tobinick v. Novella – a case challenging whether the trial court properly applied the California anti-SLAPP statute to dismiss a libel complaint filed in a diversity case in Florida. This case has attracted a bevy of amicus briefs, including from the Reporters Committee for Freedom of the Press and 24 other media organizations, arguing that the statute does not conflict with the federal rules and applies in federal court. As always, stay tuned.