Last month, Oleg Deripaska filed his response to the Associated Press’ anti-SLAPP special motion to dismiss. His brief argues that the Court should deny the Associated Press’ motion for multiple reasons. I discuss each below.

First, Deripaska argues that the DC Circuit’s decision in Abbas v. Foreign Policy Group is binding on the federal district court until it is overruled by the Supreme Court or the DC Circuit sitting en banc. But, as the Associated Press showed in its opening brief, there is recent precedent holding that, where the DC Circuit anticipates how the DC Court of Appeals would rule on an issue, a federal district court should follow a subsequent decision from the DC Court of Appeals on that issue, even if the DC Court of Appeals’ ruling is contrary to the Circuit authority. If the Associated Press is correct that the Mann decision renders inaccurate the DC Circuit’s Abbas decision interpreting the DC anti-SLAPP statute, then the federal district court should follow Mann, and not Abbas.

Deripaska’s second argument is that the Mann court stated that “[t]he applicability of the Anti-SLAPP statute in federal court is not for this court to determine.” According to Deripaska, “[t]hat statement demonstrates that the D.C. Court of Appeals has declined to speak ‘clearly and unmistakably’ to the relevant holding in Abbas,” as required for the federal district court to find that Mann rendered Abbas inaccurate. In my view, Deripaska reads too much into this one sentence. Of course, the DC Court of Appeals cannot determine if the anti-SLAPP statute applies in a federal court diversity case; that’s an issue only for the federal court. Acknowledging that fact does not mean that Mann was not “clearly and unmistakably” speaking about Abbas. To the contrary, the Mann court “clearly and unmistakably,” it seems to me, addressed what it viewed as an inaccurate interpretation of the anti-SLAPP statute in Abbas.

Deripaska next argues that, in Abbas, the DC Circuit observed that the DC anti-SLAPP statute includes certain procedural hurdles that cannot be reconciled with the Federal Rules of Civil Procedure, and that the Mann decision did nothing to change this aspect of the Abbas court’s ruling. Deripaska specifically notes that the motion to dismiss standard under Fed. R. Civ. P. 12(b) is significantly – and materially – different from the standard employed under the DC anti-SLAPP statute. And, Deripaska argues, the anti-SLAPP statute has a different discovery process than is typically employed in federal court litigation. These differences, Deripaska argues, remain, even after the Mann decision. This is the strongest portion of the Deripaska opposition, in my view.

Fourth, Deripaska quarrels with the Associated Press’ argument that the weight of authority holds that federal courts may apply state anti-SLAPP statutes when sitting in diversity. According to Deripaska, “most of these cases did not consider whether the Anti-SLAPP statutes were applicable in federal court under the Erie doctrine.” Deripaska notes that several judges in the Ninth Circuit have recently questioned that Circuit’s prior decisions applying state anti-SLAPP statues in federal court. (Notably, Derpiaska did not cite last month’s Fifth Circuit decision, where a panel of that court emphasized that, despite prior circuit decisions seeming to agree that anti-SLAPP statues apply in federal court, the applicability of state anti-SLAPP statutes in that Circuit “is an open question”).

Deripaska’s final argument, as it relates to the Associated Press’ anti-SLAPP special motion to dismiss, is that Deripaska should be allowed targeted discovery before the Court rules on the motion. The Associated Press should be required to produce a contract and memo referenced in the article, which would show, according to Deripaska, that these documents were mischaracterized in the article, and that such mischaracterization constitutes actual malice.

If the Associated Press’ motion relied only on lack of actual malice, this specific request for two documents, it seems to me, might fall within the portion of the statute that allows targeted discovery if the moving party can show a need for the documents. But, because the Associated Press’ motion is much broader, and given established authority holding that a plaintiff must plead facts showing actual malice in his complaint, it seems backward to order the AP to produce documents before this court can decide its anti-SLAPP special motion to dismiss.

The Associated Press’ reply brief capably responds to Deripaska’s arguments. Now it remains to be seen how the Court will respond to them. In the interim, anti-SLAPP motions have been filed, and opposed, in two additional federal court cases. We’ll discuss them in our next post.