Tag Archives: retroactivity

Sherrod Oral Argument Suggests DC Circuit Might Not Resolve Erie Issue

Unfortunately, I was not able to attend this morning’s oral argument in the Sherrod appeal.  The Legal Times’ summary is here.  The Washington Post summary is here.  And another summary is here.  Both the Legal Times and the Washington Post articles point out that there are a variety of other issues in Sherrod that could prevent us from getting a definitive answer on whether the statute can be used in federal court, including whether the motion was timely made, whether it applies to conduct that pre-dated the statute’s effective date, or whether it can be immediately appealed (I’ve discussed all three issues here).   …

[ 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

3M Also Opposes Consolidation With Sherrod v. Breitbart Appeal

Today, 3M filed its opposition to the motion to consolidate filed by the Davis defendants in the 3M v. Boulter appeal. Yesterday, of course, Ms. Sherrod filed her opposition to that same motion, which sought to consolidate 3M v. Boulter with Sherrod v. Breitbart. Like the Sherrod opposition, 3M’s opposition argues that the two cases are not sufficiently similar to warrant consolidation. It also emphasizes, as did Ms. Sherrod’s opposition, that the 3M appeal involves the singular Erie issue, while the Sherrod appeal involves Erie, timeliness and retroactivity, so that the Sherrod appeal could be resolved on grounds that are inapplicable (and …

[ CONTINUE READING ]

Posted in General \ Leave a comment

Breitbart Defendants Assert Judge Leon’s “Statement of Reasons”; Shows Why Appeal Should Be Entertained By DC Circuit

Its been a busy month in the Sherrod v. Breitbart case. On February 6, the Circuit issued a per curiam order asking Judge Leon to explain why he denied an anti-SLAPP motion filed by the defendants. Judge Leon complied last week, issuing a “Statement of Reasons.” Today, the Breitbart defendants responded to that filing. 

Posted in General \ Leave a comment

Sherrod Judge Issues “Statement of Reasons” Explaining Why He Denied Anti-SLAPP Motion

Judge Leon today issued a “Statement of Reasons” explaining why he denied an anti-SLAPP motion filed last year by the defendants in the Sherrod v. Breitbart lawsuit. The filing was in response to an order from the DC Circuit last week, which requested him to explain the basis for his minute order last year denying the anti-SLAPP motion. In the filing, Judge Leon explains that the motion was denied for three reasons. First, the lawsuit was filed six weeks before the statute became effective and there is no indication that it was intended to apply retroactively. The court accepts the …

[ CONTINUE READING ]

Posted in General \ 1 Comment

DC Circuit Requests Sherrod Judge To Explain Why He Denied Anti-SLAPP Motion

The DC Circuit today issued a per curiam order asking the judge who is presiding over the Sherrod v. Breitbart case, to explain why he denied an anti-SLAPP motion filed by the defendants. Last July, Judge Leon denied the motion in a minute order. Today, the DC Circuit ordered “on the court’s own motion, that the record be remanded to the district court for a statement of reasons for the denial of appellants’ motion to dismiss pursuant to the District of Columbia’s Anti-Strategic Lawsuits Against Public Participation statute, D.C. Code § 16-5502.” After the district court issues its statement of …

[ CONTINUE READING ]

Posted in General \ Leave a comment

DC Superior Court Grants Anti-SLAPP Motion Filed by Fox Television Against Lehan Plaintiff

The DC Superior Court today granted an anti-SLAPP motion made by the defendants in Lehan v. Fox. This is the first successful anti-SLAPP motion since the statute became effective earlier this year. (Although the Order appears to have been signed on November 30, it was filed today). While the Court did not issue an opinion, it made oral findings and conclusions, which it incorporated into its Order. Essentially, the Court held that the statute applied to the pending case because, as the defendants had argued in their reply brief, the “burden of proof on the plaintiff does not change [with …

[ CONTINUE READING ]

Posted in General \ 1 Comment

Sherrod Maintains That Breitbart Appeal Must Be Dismissed in Reply Brief to DC Circuit

The Sherrod plaintiff today filed her reply brief in support of her motion to have the Breitbart defendants’ appeal dismissed or have the District Court’s order summarily affirmed. According to Ms. Sherrod, a cursory review of the statute shows that it does not provide immunity from suit or trial and, as such, a denial of an anti-SLAPP motion cannot be immediately appealed under the collateral order doctrine: “[t]he key point here is that the collateral-order doctrine requires Defendants to establish a right not to stand trial, but the Anti-SLAPP Act provides no such thing.” The same review of the statute …

[ CONTINUE READING ]

Posted in General \ Leave a comment

Breitbart Defendants Assert That Dismissal of Appeal Would Be Improper by DC Circuit

The Breitbart defendants filed their response to the motion to dismiss or for summary affirmance filed last month by Ms. Sherrod. Responding first to Ms. Sherrod’s motion for summary affirmance, they argue that, under controlling Circuit precedent, such a motion must be denied where the appeal involves an issue of first impression. (Indeed, as I noted in discussing the Sherrod filing last month, this admonition is contained in the Circuit’s handbook). The defendants argue that, because this is indisputably a case of first impression (involving, for example, whether the denial of an anti-SLAPP motion can be immediately appealed; whether the …

[ CONTINUE READING ]

Posted in General \ Leave a comment

Both Parties Submit Supplemental Briefs in Lehan v. Fox on Issue of Retroactivity

Both the plaintiff and the defendants in the Lehan v. Fox case today filed the supplemental briefs ordered by the Court last month. As I suspected then, the briefs address the “retroactivity” issue, addressing whether the statute is substantive or procedural in nature. The plaintiff’s supplemental brief first argues that this suit is not a quintessential SLAPP suit because it was not filed to silence speech, but for damages suffered as a result of a false and defamatory news story. Then turning to the issue requested by the Court, it argues that “the Anti-SLAPP Act is substantive in nature and should not …

[ CONTINUE READING ]

Posted in General \ Leave a comment