Marketers often file defamation, trade libel, false advertising, and other claims against bloggers and others who make alleged false statements about the products marketed and sold by the marketers. In response, the bloggers often defend on the ground that the statements they made are true, consist of their opinions, and constitute free speech. And, in states with Anti-SLAPP statutes, the bloggers and others involved in making those statements can seek early dismissal of those suits, and even obtain attorneys' fees, if they can show that they merely exercised their free speech rights. But the U.S. Court of Appeals for the District of Columbia Circuit's recent decision in Abbas v. Foreign Policy Group LLC holds that the District of Columbia's Anti-SLAPP statute does not apply in D.C. federal court, thereby allowing marketers to deprive their opponents of Anti-SLAPP protections by filing their suits in federal court. This ruling opens the door for other jurisdictions to follow suit, and could mark the beginning of a nationwide trend that could affect how marketers and bloggers litigate their cases.
The Anti-SLAPP Act
In 2010, the District of Columbia enacted the D.C. Anti-Strategic Lawsuit Against Public Participation Act, or the D.C. Anti-SLAPP Act, to address an increase in "lawsuits filed by one side of a political or public policy debate aimed to punish or prevent the expression of opposing points of view." The Anti-SLAPP Act allows a party sued for exercising an "act in furtherance of the right of advocacy on issues of public interest" to seek early dismissal of the case with prejudice before discovery or other costly proceedings occur.
In operation, a defendant files a "special motion to dismiss" to establish that the plaintiff's claim is aimed at chilling the defendant's right to engage in protected activity under the Act, and that the plaintiff's case is not likely to succeed on the merits. If the defendant's motion is successful, the court must dismiss the case with prejudice and may award the defendant its attorneys' fees and litigation costs. But if the motion is frivolous or brought solely to cause unnecessary delay, then the court may award attorneys' fees to the non-moving party.
The D.C. Anti-SLAPP Act falls in line with many other states that have enacted similar legislation, including California, New York, Pennsylvania, and Maryland.
On April 24, 2015, the U.S. Court of Appeals for the District of Columbia Circuit issued its Abbas decision, which is the first federal appellate decision holding that a state Anti-SLAPP statute does not apply in federal court. In Abbas, the plaintiff, Yasser Abbas, son of Palestinian leader Mahmoud Abbas, sued a reporter and the Foreign Policy Group for defamation in connection with statements made in an article on the Group's website about Abbas and his brother. Defendants filed a special motion to dismiss under D.C.'s Anti-SLAPP Act, arguing that the statements furthered their rights of advocacy on issues of public interest. The district court granted the motion, dismissed plaintiff's case, and plaintiff appealed.
On appeal, the D.C. Circuit held that the D.C. Anti-SLAPP Act cannot apply in federal court because the Act's special motion to dismiss provision conflicts with the Federal Rules of Civil Procedure. This is so, according to the court, because the Federal Rules of Civil Procedure exclusively "establish the standards for granting pre-trial judgment to defendants in cases in federal court." Thus, the Court held that a "federal court must apply those Federal Rules instead of the D.C. Anti-SLAPP Act's special motion to dismiss provision." Therefore, litigants may not invoke the D.C. anti-SLAPP statute in D.C. federal court. The D.C. Anti-SLAPP Act remains applicable to cases litigated in D.C. Superior Court.
Split Among Federal Circuits
The Abbas decision conflicts with the Ninth Circuit's 1999 decision in Newsham v. Lockheed Missiles & Space Co., in which the Ninth Circuit held for the first time that litigants may invoke California's Anti-SLAPP statute in federal courts. The First Circuit's 2010 decision in Godin v. Schencks is consistent with the Ninth Circuit's holding in Newsham. Moreover, the issue of whether a state's anti-SLAPP statute may be applied in federal court is currently pending before the Seventh Circuit.
Notwithstanding this apparent conflict among the federal courts of appeals, the current trend appears to coincide with Abbas. Indeed, as the D.C. Circuit noted in Abbas, two judges of the Ninth Circuit—Judge Alex Kozinski and Judge Paul J. Watford—recently expressed disagreement with the Ninth Circuit's long-standing precedent. As Judge Kozinski wrote, "Newsham was a big mistake . . . Federal courts have no business applying exotic state procedural rules which, of necessity, disrupt the comprehensive scheme embodied in the federal rules." Given the frequency with which Anti-SLAPP motions are litigated in California, a ruling that precludes litigants from filing Anti-SLAPP motions in California federal courts would vastly affect California federal litigation practice.
The Abbas decision has broad applicability to and implications for marketers and bloggers involved in cases involving free speech. This is because whether a state's Anti-SLAPP protections apply to lawsuits involving marketers and bloggers will, in many instances, turn on whether the jurisdiction in which the suits are brought follows Abbas. Although Anti-SLAPP protections will not apply in federal courts following Abbas, Anti-SLAPP protections will apply in federal courts that reject it. Therefore, marketers anticipating an Anti-SLAPP motion can easily avoid such a motion by filing their lawsuits in federal courts that follow Abbas or its reasoning (assuming, of course, that the federal courts otherwise have jurisdiction over the lawsuits). Likewise, bloggers sued in state court with viable Anti-SLAPP motions must decide in short order whether to keep the case in state court to invoke the statutes' protections or remove to federal court and lose their ability to seek relief under the Anti-SLAPP statutes.
Under Abbas, litigants with cases pending in the District of Columbia must now devote particular attention to potential Anti-SLAPP motions when deciding where to sue and whether to remove to federal court. And, litigants in other jurisdictions should be mindful of the circuit split and formulate their litigation strategy accordingly.