Growing 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.

The DC Circuit created a circuit split when it held, in Abbas v. Foreign Policy Group, that the Federal Rules of Civil Procedure exclusively “establish the standards for granting pre-trial judgment to defendants in cases in federal court” and that, because the District of Columbia’s anti-SLAPP statute dictated a pre-trial procedure that conflicted with those rules, it could not apply in a federal court diversity case.  (The parties in the Abbas case have since advised the district court that one, or both, might seek Supreme Court review).

At the time it was issued, Abbas was the only federal appellate decision that rejected the application of a state anti-SLAPP statute in federal court (although several judges in the Ninth Circuit had urged that court to reexamine its prior decisions because they believed that “[v]iewed through Shady Grove’s lens, California’s anti-SLAPP statute conflicts with Federal Rules 12 and 56”).

The Abbas decision was in direct contrast to Godin v. Schencks, where the First Circuit held that the Maine anti-SLAPP statute did not conflict with the Federal Rules of Civil Procedure, and could be applied in federal court, and U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., where the Ninth Circuit held that California’s anti-SLAPP statute did not conflict with Federal Rules 12 and 56.

Now, however, the Seventh Circuit has openly questioned whether the Washington state anti-SLAPP statute could be applied in federal court.  In Intercon Solutions, Inc. v. Basel Action Network, et al., it reviewed a district court decision which held that the Washington state anti-SLAPP statute was “incompatible” with the Federal Rules of Civil Procedure and could not be applied in federal court.  Although it ultimately affirmed dismissal of the anti-SLAPP motion on an alternative ground (because, in the interim, the Washington State Supreme Court ruled that state’s anti-SLAPP statute was unconstitutional), the Seventh Circuit ominously stated that “[f]ederal rules prevail in federal court” and that “Congress can alter federal pleading standards, . . . but states lack a comparable power.”

And, since the Abbas decision was handed down, another federal district court has concluded that a state anti-SLAPP statute does not apply in federal court.  In Unity Healthcare, Inc. v. County of Hennepin, the Minnesota federal district court held that state’s anti-SLAPP statute “collides head-on” with Rule 56 because, among other things, “[t]he restrictive standard for discovery under the anti-SLAPP law is oil to the water of Rule 56’s more permissive standard” and “Minnesota’s anti-SLAPP law turns judges into pre-trial factfinders who must decide factual disputes by assessing credibility and weighing evidence, and they must do so without drawing inferences in favor of the nonmoving party. This standard is anathema to the standard under Rule 56.”

The growing split among the federal courts, together with the fact that Shady Grove (the decision that is fueling the arguments that state anti-SLAPP statutes do not apply in federal court) was an incredibly fractured decision, suggests that the Supreme Court needs to decide this issue sooner rather than later.