Something to Talk About: Recent Developments in Federal Court SLAPP Lawsuits – Trials, Appeals and Remedies

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Many states have enacted laws limiting Strategic Public Participation Litigation (known as “anti-SLAPP” laws) to protect parties from lawsuits designed to freeze speech. These laws vary from state to state, but often include mechanisms to protect defendants from the burdens of litigation—for example, by allowing defendants to quickly dismiss claims, avoid discovery, and recover their attorneys’ fees after prevailing. Congress has recently considered enacting a federal anti-SLAPP statute, but has not yet done so. The absence of a federal anti-SLAPP statute has led to conflicting rulings on whether state anti-SLAPP statutes are valid defenses to state law claims asserted in federal court.

But where a federal court has denied a motion to dismiss based on a state anti-SLAPP statute, there is near-unanimity on one issue: that SLAPP defendants can file an interlocutory appeal to challenge the denial of their SLAPP defense. While federal appellate courts generally lack jurisdiction over open-ended judgments, under the remand injunction doctrine they can and do hear appeals from preliminary injunctions that (1) conclusively decide a disputed issue; (2) resolve an important issue entirely separate from the merits of the action; and (3) would be unreviewable on appeal from a final judgment. See Mohawk Indus., Inc. v. Carpenter, 558 US 100, 105 (2009). Courts have recognized that denials of immunity under state and federal law under this test are immediately appealable because they create “a right not to stand trial or face the additional burdens of litigation” that would be “effectively lost” without an opportunity to file an interlocutory appeal.
Mitchell v. Forsyth472 US 511, 526-27 (1985).

Most federal appellate courts have concluded that the rejection of a SLAPP defense should be immediately appealed because anti-SLAPP statutes are often intended to provide immunity from suit. See e.g., Franchini v. Inv. Bus. Daily, Inc.981 F.3d 1, 7 (1st Cir. 2020) (noting that “Maine courts further construe the (Maine) anti-SLAPP statute to create a substantive right” to exclude such litigation); Henry v. Lake Charles Am. Press, LLC566 F.3d 164, 178 (5th Cir. 2009) (“(Louisiana’s anti-SLAPP statute) provides an express statutory guarantee of the right not to stand trial”).

Following precedent to similar effect, the Ninth Circuit recently ruled Martinez v. ZoomInfo Tech., Inc. that it has jurisdiction to review the rejection of ZoomInfo’s SLAPP defense under California’s anti-SLAPP statute. 2023 WL 6153577 (9th Cir. Sept. 21, 2023). In a concurring opinion, however, Justices Desai and McKeown expressed reservations about the precedent allowing preliminary appeals from SLAPP denials, a point recently echoed by others in the Ninth Circuit and elsewhere: namely, that an order denying a defendant from raising an anti-SLAPP defense is not severable from the merits of the action , because a trial court’s analysis of whether the anti-SLAPP statute applies “necessarily weighs the plaintiff’s likelihood of success” on that merit.
Id. at *9 (Desai, J., concurring); see also
Ernst v. Carrigan814 F.3d 116, 120 (2d Cir. 2016).

If this reasoning continues to prevail in the federal courts of appeals, it will undermine the ability of SLAPP defendants to achieve the purpose that anti-SLAPP statutes are generally intended to promote: “the right not to bear the costs of fighting an unjustified . . . claim” has led to suppression of speech.
Henry, 566 F.3d at 178. The patchwork of inconsistent precedents addressing whether state anti-SLAPP defenses apply to claims brought in federal court already provide forum shopping opportunities for strategic litigants. Any further departure from the currently prevailing rule that denials of SLAPP motions are immediately appealable will only increase the likelihood of such conduct.

As plaintiffs increasingly use litigation as a tool to fend off conversations they don’t like, there are reasons to be concerned about decisions that gut state laws that grant substantive rights to be free from the burden of litigation—as in many states with anti-SLAPP statutes they are clearly designated.

The content of this article is intended to provide a general guide to the issue. Professional advice should be sought regarding your particular situation.

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