Tag Archives: DC Circuit

Will Farah v. Esquire Appeal Resolve “Erie” Question?

While the Sherrod v. Breitbart appeal has attracted a lot of attention at the DC Circuit, there is another case that could resolve whether the DC anti-SLAPP statute applies in federal court: Farah v. Esquire.  There, the plaintiffs/appellants are appealing the district court’s decision granting the defendants’ anti-SLAPP and 12(b)(6) motions and dismissing their false light, defamation, and Lanham Act causes of action. As alleged in the Complaint, a May 2011 post on Esquire’s politics blog contained fictional statements by publisher Joseph Farah that he would destroy the first-run print of Jerome Corsi’s book, Where’s the Birth Certificate? The Case …

[ CONTINUE READING ]

Posted in General \ Leave a comment

Sherrod v. Breitbart Appeal Ready for Oral Argument

The Sherrod v. Brietbart appeal is now fully briefed (opening brief here, opposition brief here, and reply brief here) and ready for the oral argument, scheduled for March 15, 2013.  (The case has also attracted amicus briefs, including from the District of Columbia, the ACLU and Public Citizen, and a host of news organizations).  The threshold question in Sherrod is whether the denial of an anti-SLAPP motion is immediately appealable under the collateral order doctrine of Cohen v. Beneficial Loan Corp.  (The DC Court of Appeals recently held that it was not).  Under Cohen, the appellants must show that the …

[ CONTINUE READING ]

Posted in General \ Leave a comment

Will DC Court of Appeals’ Decision Impact Sherrod Appeal?

I have learned that, last month, the DC Court of Appeals dismissed the appeal of an order denying an anti-SLAPP motion.  The court held that there was no interlocutory review under the statute and that the order was not appealable under the Cohen collateral order doctrine.  This order, and other rulings in the same suit, could have major ramifications for the Sherrod v. Breitbart appeal and the other pending anti-SLAPP motions.  

Posted in General \ Leave a comment

Roundup on Pending Cases Involving the DC anti-SLAPP Statute

After a period of relative quiet, there has been a flurry of activity in the District of Columbia federal and state courts in cases involving the DC anti-SLAPP statute.  Here’s a summary of where the various cases stand:              •           Sherrod v. Breitbart:  The case drawing the most attention is the pending appeal in the United States Court of Appeals for the District of Columbia Circuit in Sherrod v. Breitbart.  There, the defendants/appellants have filed their opening brief; the District of Columbia has filed an amicus brief; Public Citizen and the American Civil Liberties Union of the Nation’s Capital have filed …

[ CONTINUE READING ]

Posted in General \ 2 Comments

DC federal court reiterates that anti-SLAPP statute inapplicable in federal court

While 3M and Lanny Davis were resolving their claims, the judge presiding over the district court portion of the case resurrected his February 2012 decision against another one of the defendants in that same case and held – again – that the DC anti-SLAPP statute does not apply in federal court.  

Posted in General \ Leave a comment

Lanny Davis Drops High-Profile Appeal of Denial of Anti-SLAPP Motion

With apologies to Queen, another anti-SLAPP suit has bitten the dust.  Unlike the Lehan v. Fox Television Stations case, in which the defendants’ anti-SLAPP motion was granted, however, the high-profile squabble between 3M and Lanny Davis has ended because of a settlement. 

Posted in General \ Leave a comment

Breitbart Defendants File Opening Brief in DC Circuit

The defendants in the Sherrod v. Breitbart case have filed their opening brief in the DC Circuit.  As you may recall, Judge Leon’s Statement of Reasons, explaining why he denied the anti-SLAPP motion in his minute Order, stated that it was denied because: (a) the lawsuit was filed six weeks before the statute became effective and there was no indication that it was intended to apply retroactively; (b) the statute is inapplicable in federal court, which is required to apply federal procedural law under Erie; and (c) the motion was not timely made. Almost ½ of the appellate brief is …

[ CONTINUE READING ]

Posted in General \ Leave a comment

Texas Addresses Whether Denial of Anti-SLAPP Motion Can Be Immediately Appealed

One of the main issues to be decided in the Sherrod and 3M appeals is whether there is a right to immediate appeal from the denial of an anti-SLAPP motion.  In urging the DC Circuit to summarily affirm the district court’s decision denying the anti-SLAPP motion, Ms. Sherrod argued that the statute did not provide a right to immediate review and that the appeal should be dismissed on that basis alone.  3M made a similar argument in moving to dismiss the Davis defendants’ appeal.  In response, the DC Circuit ordered, here and here, that “the motion to dismiss be referred to …

[ CONTINUE READING ]

Posted in General \ Leave a comment

Media Want to Weigh In on Sherrod and Davis Appeals

A group of leading news organizations and a related professional organization have asked the DC Circuit for leave to file an amicus brief in support of the appellants in Sherrod v. Breitbart and 3M v. Davis.  Their motion explains that they “will argue that the District of Columbia Anti-SLAPP Act applies in federal court to diversity actions.”  While this issue will be briefed, at length, by the parties to the appeals, the media’s motion argues that they “bring substantial experience to bear on the issues presented here – not simply in terms of legal expertise, but also in terms of …

[ CONTINUE READING ]

Posted in General \ Leave a comment

DC Circuit Denies Sherrod Motion for Summary Affirmance

On the same day that the DC Circuit denied the motion to consolidate the appeal in 3M v. Davis with Sherrod v. Breitbart, it also denied Ms. Sherrod’s motion for summary affirmance, explaining that “[t]he merits of the parties’ positions are not so clear as to warrant summary action.”  The day was not a total loss for Ms. Sherrod, however, as the Court ordered that “the motion to dismiss be referred to the merits panel to which this case is assigned.”  Finally, while the motion to consolidate was denied, the Court has scheduled both cases for argument on the same …

[ CONTINUE READING ]

Posted in General \ Leave a comment