Last month, the judge presiding over the Deripaska v. Associated Press case granted the Associated Press’ Rule 12(b)(6) motion and dismissed the case. The Associated Press had filed a companion special motion to dismiss under the DC anti-SLAPP statute. The federal court issued a separate opinion, denying that motion.

The federal district court agreed that, when the DC Court of Appeals has “spoken clearly and unmistakably as to the current state of D.C. law,” a federal court should follow that decision (e.g., Mann), even if it appears to be in conflict with a prior decision from the DC Circuit (e.g., Abbas). The court concluded, however, that the Mann decision did not “clearly and unmistakably” resolve the question of whether a federal court exercising diversity jurisdiction may apply the D.C. anti-SLAPP Act’s special motion to dismiss provision. The court acknowledged that its decision “will likely promote the type of forum-shopping that Erie intended to avoid,” but explained that “it is not for district court judges to override the determinations of circuit precedent.” As a result, the court denied the Associated Press’s anti-SLAPP special motion to dismiss.

The issue of whether the DC anti-SLAPP state can be applied in a federal court diversity case (after Mann) will ultimately need to be decided by the DC Circuit. And the question of whether state anti-SLAPP statutes can be applied in a federal court diversity case will ultimately need to be decided by the Supreme Court. For now, I assume that parties proceeding in DC federal court diversity cases will continue to make their motions.