For more than two decades, the Ninth Circuit treated California’s anti-SLAPP law as substantive law and refrained from enforcing the law. Erie doctrine to consider whether anti-gag motions should generally be barred in federal courts absent a “direct conflict.”1, 2 Anti-SLAPP motions are often favored by California defendants because they can provide speedy relief to individuals or entities sued for conduct involving their right to free speech or petition to potentially obtain an early exit from litigation before significant costs from accumulating, by creating a procedural mechanism by which defendants can require plaintiffs alleging such claims to substantiate their merits at the early stages of the case.3
In recent years, however, federal courts in at least five circuits have questioned this deferential approach when evaluating versions of similar statutes from their own respective states. Rather than holistically defer to state anti-gag laws as substance in the absence of a “direct conflict,” the courts of the Second, Fifth, Tenth, and Eleventh Circuits, as well as the DC Circuit , systematically invoked the Erie doctrine to assess whether each anti-SLAPP provision is substantive or procedural.4
In August 2022, the Ninth Circuit took the floor to reaffirm its position regarding the merits of anti-SLAPP petitions in federal courts within its jurisdiction. Recognizing the aggravation of the fracture which is tearing the country apart, the Court CoreCivic Group v. Candid once again protected California’s anti-SLAPP law from Erie investigation, finding that no basis existed to undermine its earlier position that no conflict warrants barring the motions in the federal courts of the Ninth Circuit.5, 6
While acknowledging the existence of out-of-circuit decisions ruling otherwise with respect to other states’ anti-SLAPP laws, these sister circuit decisions left the Ninth Circuit unfazed with its approach to California law.seven In addition, the Court suppressed minority opinions within the Ninth Circuit that suggested that California’s anti-SLAPP laws are overshadowed by federal procedural rules, Rule 12(b)(6) and Rule 56, respectively governing the motions to dismiss and motions for summary judgment.8 Instead, the Court reconciled any potential conflict by explaining that the provisions of the anti-gag laws “must be analyzed by the same standard” that Rules 12(b)(6) and 56 impose, again dealing with the provisions anti-gags as purely substantive.9
CoreCivic can cause a ripple effect on other circuits and widen the gap. The issue is ripe for the Supreme Court to break its longstanding silence on whether and to what extent state anti-SLAPP laws are preempted.ten As the silence sparked potential creative alternatives, such as the Uniform Public Expression Protection Act (UPEPA), a model anti-gag law approved by the Uniform Law Commission in 2020, states have put time to adopt it, leaving litigants in other jurisdictions open. the possibility of forum shopping in channels that consider state anti-SLAPP laws to be in conflict with federal law.11 Ninth Circuit litigants, however, need not worry about such things, at least not yet.
FOOTNOTES
1 See, for example, US ex rel. Newsham v Lockheed Missiles & Space Co.190 F.3d 963, 972 (9th Cir. 1999) (hereinafter”Newsham”) (internal citations omitted) (Absent a “direct collision” between a state’s anti-SLAPP law and the Federal Rules of Civil Procedure, state law applies to federal actions in favor of diversity).
2 It is well established that when state law conflicts with federal law, courts use the Erie test to determine which law applies. The first step towards the Erie test is whether “a federal rule of civil procedure” meets[s] the same question as the [special motion to strike].” Abbas v Foreign Pol’y Grp., LLC783 F.3d 1328, 1335 (DC Cir. 2015) (citing Shady Grove Orthopedic Assocs., PA v. Allstate Ins. Co., 559 US 393, 398-99 (2010)). If the result is affirmative, the federal rule applies. ID. Although an exception arises if the federal rule violates the rule-enabling statute, the U.S. Supreme Court has “dismissed all challenges to the federal rules it considered under the rule-enabling statute.” “. ID. at 1336.
3 cal. Civil Code. proc. § 426.16.
4 See Liberty v. Reid966 F.3d 79, 86–88 (2d Cir. 2020); Klocke vs. Watson936 F.3d 240, 244–49 (5th Cir. 2019); Los Lobos Renewable Power, LLC v AmeriCulture, Inc.885 F.3d 659, 668–73 (10th Cir. 2018); Carbon vs. Cable News Network, Inc.910 F.3d 1345, 1349–1357 (11th Cir. 2018); Abbas v Foreign Pol’y Grp., LLC783 F.3d 1328, 1333–37 (DC Cir. 2015).
5 CoreCivic c. Candide Grp., no. 20-17285, 2022 US App. LEXIS 24417, at *10-12 (9th Cir. Aug. 30, 2022), reh’g denied in bench, 2022 US app. LEXIS 29257 (9th Cir. 20 Oct. 2022).
6 Greenberg Traurig, LLP has represented and continues to represent CoreCivic in a wide range of matters, but has not participated in the Candid dispute.
seven CoreCivic, 2022 US app. LEXIS 24417, at *15.
8 ID. to *16.
9 ID.
ten The Supreme Court has consistently declined to take cases regarding state anti-SLAPP laws. See, for example, Yagman v. edmondson, 723 Fed. App’x 463 (9th Cir. 2018), cert. refuse, 139 S.Ct. 823 (2019); Planned Parenthood Fed’n of Am., Inc. v. CT. form. Progress897 F.3d 1224 (9th Cir. 2018), certificate denied, 139 S.Ct. 1446 (2019). As recently as February 2021, the Supreme Court again refused by refusing the review in Clifford versus Trump, 141 S.Ct. 1374 (2021), which presented the conflict between the positions of the Ninth Circuit and the Fifth Circuit on the applicability of Texas’ anti-SLAPP law in federal court.
11 Only three states have adopted UPEPA (Hawaii, Kentucky, and Washington) and five states have introduced it (Indiana, Iowa, Missouri, New Jersey, and North Carolina) as of November 2022. See Public Expression Protection Act, Uniform Law Commission (November 1, 2022).
©2022 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume XII, Number 332