Six months after the 9th Circuit Court of Appeals" chief judge urged the full court to disallow use of anti-SLAPP statutes within the Circuit, the 9th Circuit announced its refusal to reconsider its decisions applying the law in federal court and immediately reviewing orders denying anti-SLAPP motions under the collateral order doctrine. 

In April 2013, a three-judge panel in Makaeff v. Trump University, LLC affirmed the district court"s application of the law to a counterclaim that the plaintiff defamed "Trump University" in comments on websites and letters to the Better Business Bureau. 715 F.3d 254 (9th Cir. 2013).  In a harshly worded concurrence, however, Chief Judge Alex Kozinski urged the court to hear the case en banc and reverse its holding in Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 973 (9th Cir.1999) that the anti-SLAPP statute, Cal. Civ. Code § 425.16, applies in federal court.  Judge Richard A. Paez wrote a separate concurrence, pressing the court to reconsider its decision in Batzel v. Smith, 333 F.3d 1018, 1025 (9th Cir.2003), that orders denying anti-SLAPP motions are appealable under the collateral order doctrine.  (Notably, the parties did not brief these issues nor did they come up during oral argument in either the district court or before the 9th Circuit panel.)

Judge Kozinski premised his argument on two points.  First, he suggested that the anti-SLAPP law "creates no substantive rights" and "merely provides a procedural mechanism for vindicating existing rights," and thus does not apply in federal court. 715 F.3d at 272.  Second, he contended that even if the law does create substantive rights, it conflicts with Federal Rules of Civil Procedure 8, 12, and 56, which, along with other rules, create an "integrated program of pre-trial, trial and post-trial procedures," an "orderly process" into which the anti-SLAPP law "cuts an ugly gash." Id. at 274. He concluded: "Federal courts have no business applying exotic state procedural rules which, of necessity, disrupt the comprehensive scheme embodied in the Federal Rules, our jurisdictional statutes and Supreme Court interpretations thereof." Id. 

After fourteen years of 9th Circuit precedent applying the anti-SLAPP statutes of California, Oregon, Washington and Nevada, the prospect that the court might decide that these state statutes were unavailable in federal court created a wave of uncertainty that this decision resolves. A majority of the court refused to hear the question of whether anti-SLAPP statutes should remain available within the Circuit.  2013 U.S. App. LEXIS 23901 (Nov. 27, 2013).

In a concurrence, four judges, Kim McLane Wardlaw, Consuelo M. Callahan, William A. Fletcher and Ronald M. Gould, undertook a detailed analysis of United States Supreme Court precedent to conclude that such state statutes should remain available in federal court, and that orders denying anti-SLAPP motions should be reviewable by way of immediate interlocutory appeal. Id. at *3-25. They wrote that "refusing to recognize" the limitations placed on SLAPPs by seven state legislatures "is bad policy." Id. at *22. They concluded: "If we ignore how states have limited actions under their own laws, we not only flush away state legislatures" considered decisions on matters of state law, but we also put the federal courts at risk of being swept away in a rising tide of frivolous state actions that would be filed in our circuit"s federal courts." Id. at *22-23.

The decision resolves any lingering doubt about the availability of anti-SLAPP statutes within the 9th Circuit.  And it may provide guidance to the two circuit courts that will soon decide the same issue. The 7th and D.C. Circuits both have before them cases involving the applicability of the anti-SLAPP statute in federal court, and the 7th Circuit will also decide whether denial of such a motion is immediately appealable under the collateral order doctrine. Intercon Solutions, Inc. v. Basel Action Network, Case No. 13-3148 (7th Cir.); Abbas v. Foreign Policy Group et al, LLC, Case No. 13-7171 (D.C. Cir.).  Davis Wright Tremaine will represent a coalition of news media in amicus briefs in both cases."

Thomas R. Burke is a partner in the San Francisco office of Davis Wright Tremaine LLP and author of Anti-SLAPP Litigation (The Rutter Group, 2013).  Ambika K. Doran is a partner in the firm"s Seattle office.