Why decisions in DC illustrate the need for a federal anti-SLAPP law (Part 1)
This is the first post in a three-part series from guest contributor Leslie Paul Machado, Chair of LeClairRyan's Media, Internet and E-commerce Industry Team and author of the D.C. Anti-SLAPP Law blog.
Almost three years ago, I wrote that “[g]rowing disagreement among federal courts over whether state anti-SLAPP statutes apply in federal court makes clear that the Supreme Court is going to have to resolve this issue.” I’ve changed my mind. Recent decisions in the District of Columbia show that Congress needs to act – now – to pass a federal anti-SLAPP statute. Here’s why.
Federal Courts, Including In The District of Columbia, Apply State Anti-SLAPP Statutes
First, some background. In a 1938 decision (Erie Railroad Co. v. Tompkins), the plaintiff (Tompkins) brought his case in federal court to avoid unfavorable state law, and won. The Supreme Court held, however, that the federal court was bound to apply the state substantive law. “The Erie doctrine,” as it came to be called over time, reflects two related goals: the avoidance of forum shopping and unequal administration of the laws. (Forum shopping occurs when a case can be brought in multiple courts – a sophisticated plaintiff might choose the court that will treat his/her claims most favorably. In Erie, for example, Tompkins tried to avoid the application of Pennsylvania law by bringing the case in federal court).
For many years federal courts routinely held state anti-SLAPP statutes could be used in a federal court case. See, e.g., Godin v. Schencks, 629 F.3d 79 (1st Cir. 2010); Henry v. Lake Charles American Press, L.L.C., 566 F.3d 164 (5th Cir. 2009); United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir. 1999). These courts reasoned the state statutes provided “substantive legal defenses” (Godin), and applying them in federal court furthered “important, substantive state interests” (Newsham). Because the anti-SLAPP statutes provided substantive protections, they should be available in federal court, the courts held, so as to avoid forum shopping and unequal administration of the laws. The courts reasoned that, although the state anti-SLAPP statutes required different procedural mechanisms than the Federal Rules of Civil Procedure, they could nevertheless apply in federal court, because they simply provided an alternative means to dismiss certain suits.
After the D.C. anti-SLAPP statute became effective, D.C. federal district courts followed these courts in finding the statute provided “substantive” protections that were available in a federal court case. See, e.g., Farah v. Esquire Magazine, Inc., 863 F. Supp. 2d 29, 36 n.10 (D.D.C. 2012) (applying statute to dismiss libel and false light suit because “[i]t was certainly the intent of the D.C. Council and the effect of the law – dismissal on the merits – to have substantive consequences”); Sherrod v. Breitbart, 843 F. Supp. 2d 83, 85 (D.D.C. 2012) (“defendants’ own briefs and the legislative history make clear that the D.C. Anti-SLAPP Act is substantive”).
In 3M Co. v. Boulter, 842 F. Supp. 2d 85 (D.D.C 2012), however, the D.C. federal district court held the D.C. anti-SLAPP statute conflicted with Federal Rules of Civil Procedure 12 and 56 and, as a result, could not apply in a federal court diversity case. (Rules 12 and 56 provide the means by which defendants can move to dismiss suits before trial. The 3M court reasoned that, because the D.C. anti-SLAPP statute provides a different means to dismiss suits prior to trial, it conflicted with Federal Rules 12 and 56 and, thus, could not apply in a federal court case). Notwithstanding the 3M decision, however, it remained an outlier in the D.C. federal district court as other judges in the same court continued to hold the D.C. anti-SLAPP statute applied in a federal court diversity case. See, e.g., Boley v. Atlantic Monthly Group, 950 F. Supp. 2d 249, 254 (D.D.C. 2013) (“While thoroughly reasoned, 3M Co. conflicts with the weight of authority. Indeed, three federal circuit courts have deemed it necessary to enforce state anti-SLAPP laws in diversity actions, finding no conflict between those statutes’ special motion to dismiss provisions and Federal Rules of Civil Procedure 12 and 56. Finding these cases persuasive, the Court adopts their reasoning and therefore will apply the Anti-SLAPP Act’s special motion to dismiss provisions in this case” (citations omitted)); Forras v. Rauf, 39 F. Supp. 3d 45, 52 (D.D.C. 2014) (“Finding the Courts of Appeals cases and the recent D.C. District Court cases persuasive, the Court concludes that the Anti-SLAPP Act empowers defendants with the substantive right to fend off SLAPP lawsuits. Therefore the Court will apply the Anti-SLAPP Act’s special motion to dismiss provisions in this case”).
However, judges in other circuits – including, most notably, the Ninth Circuit – were beginning to question whether state anti-SLAPP statutes could apply in a federal court diversity case. See, e.g., Makaeff v. Trump University, LLC, 715 F.3d 254, 275 (9th Cir. 2013) (Kozinski, J., concurring) (“Federal courts have no business applying exotic state procedural rules which, of necessity, disrupt the comprehensive scheme embodied in the Federal Rules”); Makaeff v. Trump University, LLC, 736 F.3d 1180, 1188 (9th Cir. 2013) (Watford, J., dissenting from denial of rehearing en banc) (Rules 12 and 56 “establish the exclusive criteria for testing the legal and factual sufficiency of a claim in federal court.”).
To read more, the second post in this three-part series is available here. Mr. Machado will discuss the D.C. Circuit's decision on whether the D.C. anti-SLAPP statute could be used in federal diversity cases.