An important decision issued by the Second Circuit last week adds to the growing dissonance among the federal circuits on anti-SLAPP motions.  The ruling could impact a case pending before the DC Court of Appeals, and creates another circuit split that will ultimately need to be resolved by the Supreme Court.

In Ernst v. Carrigan, the district court partially granted a motion under Vermont’s anti-SLAPP statute and dismissed portions of a libel complaint, but denied the anti-SLAPP motion as to remaining parts of the complaint.  After the district court declined to certify the opinion for interlocutory appeal, the parties cross-appealed.

The Second Circuit explained that, unless the appeal was subject to the collateral order doctrine, the appellate court lacked jurisdiction (because the appeal was from a non-final decision).  To invoke the collateral order doctrine, the Second Circuit held, the order must (1) conclusively determine the disputed question; (2) resolve an important issue completely separate from the merits of the action; and (3) be effectively unreviewable on appeal from a final judgment.

The Second Circuit held that the appeal from the anti-SLAPP decision did not qualify for the collateral order doctrine because it was not “completely separate” from the merits.  Rather, the Ernst court reasoned, the anti-SLAPP analysis, which requires an early consideration whether the plaintiff’s claim is meritorious, is “inescapably intertwined” with the ultimate issues to be decided by the trial court:

Determining whether the Carrigans’ and Kauffmans’ statements were “devoid of any reasonable factual support” (as Vermont’s anti-SLAPP statute requires) is by no means “conceptually distinct” and “significantly different” from whether the statements were false (as Vermont defamation law requires).  The same goes for consideration of whether the statements lacked “any argument basis in law” and whether the statements were unprivileged.  The requirement of the anti-SLAPP statute that the statements “caused actual injury” is indistinguishable from the last element of a defamation claim: actual harm suffered by reason of the defamatory statements.  In sum, a special motion to strike under Vermont’s anti-SLAPP statue “involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.”

The Ernst court also rejected an argument that the Vermont anti-SLAPP statute was akin to immunity from trial (which has been held to be immediately appealable under the collateral order doctrine).  It explained that immunity decisions are immediately appealable because they turn on pure legal questions.  The anti-SLAPP decision, on the other hand, turned on “fact-based determinations,” making it inappropriate for interlocutory appeal.

The Ernst decision is noteworthy for two reasons.  It creates a circuit split on the question of whether anti-SLAPP resolutions are immediately appealable under the collateral order doctrine because, as the Second Circuit recognized, its decision directly conflicts with decisions from the Fifth and Ninth Circuits.  This new circuit split joins the circuit split created by the DC Circuit in the Abbas case, over whether anti-SLAPP statutes apply in federal court.  And, on that point, the Ernst court stated: “[b]ecause we conclude that we lack appellate jurisdiction, we do not reach the issue of whether Vermont’s anti-SLAPP statute is applicable in federal court.”

As readers of this blog know, the question of whether the denial of a motion under the DC anti-SLAPP statute is immediately appealable has been the subject of considerable argument.  In 3M Company v. Boulterthe appellants argued that the DC Circuit had jurisdiction over the denial of their anti-SLAPP motion under the collateral order doctrine.  (The 3M defendants settled the case before the DC Circuit issued a ruling).  InSherrod v. Breitbartthe DC Circuit avoided deciding the collateral order question by deciding the appeal on other grounds.

On the local level, the DC Court of Appeals dismissed an appeal from the denial of an anti-SLAPP motion inHuntington v. Newmyer, stating, in a per curiam order, that it was not appealable under the collateral order doctrine.  In Doe v. Burke, however, the same court held that an order denying a special motion to quash was immediately appealable under the collateral order doctrine.  The Burke court emphasized that it was notaddressing “the related but separate question of whether an order denying a special motion to dismiss under the Anti-SLAPP Act is immediately appealable.”

That question is front and center in the Mann v. CEI appeal, which has been pending at the DC Court of Appeals for over 14 months.  I wonder if the Second Circuit decision will have any impact on that decision.