This article was republished in Law360 on May 8, 2015.
On April 24, 2015, the U.S. Court of Appeals for the District of Columbia Circuit issued the first federal appellate decision holding that a state Anti-SLAPP statute does not apply in federal court. The decision, Abbas v. Foreign Policy Group LLC, has broad applicability to and implications for cases involving political speech, public advocacy, and other exercises of rights of speech and press. This is because, until this decision was issued, litigants in federal court in the District of Columbia could try to have their opponents' lawsuit dismissed under the D.C. Anti-SLAPP statute as if their opponents had filed the case in the Superior Court of the District of Columbia. The decision also creates a split among the federal circuits, thereby making the issue—whether federal courts are required to apply local Anti-SLAPP statutes that impose a burden on the plaintiff to show a probability of success on the merits to avoid dismissal of its claim at the outset of the case—ripe for U.S. Supreme Court review.
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.
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 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." This is because, according to the Court, binding Supreme Court precedent prohibits federal courts from applying state or local procedural rules that answer the same question already covered by the Federal Rules of Civil Procedure established by Congress. 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, which has taken the issue under advisement.
Notwithstanding this apparent conflict among the federal courts of appeals, the current trend in the law 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 which precludes litigants from filing Anti-SLAPP motions in California federal courts would vastly affect California federal litigation practice.
Whether a case is litigated in state or federal court will, in many instances, turn on whether the jurisdiction in which the suit is brought follows Abbas. This means that plaintiffs 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, defendants 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. Therefore, 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. Moreover, litigants in other jurisdictions should be mindful of the circuit split and formulate their litigation strategy accordingly.