Addressing an issue of first impression, the Fifth Circuit recently held that an order denying a motion to dismiss brought under an Anti–SLAPP statute is immediately appealable. NCDR, LLC v. Mauze & Bagby, PLLC, No. 12–41243, 2014 U.S. App. LEXIS 4511 (March 11, 2014).

Kool Smiles runs a national chain of dental clinics. Mauze & Bagby (M&B) is a Texas law firm that solicited former Kool Smiles patients by way of their website and television, radio and internet ads that implied or accused Kool Smiles of performing unnecessary and, at times, harmful dental work on children to obtain government reimbursements. Kool Smiles sued M&B for trademark infringement, false advertising, cyberpiracy, defamation, business disparagement, injury to business reputation and trade name and service mark dissolution. M&B moved to dismiss under, among other things, the Texas Anti–SLAPP Statute. The district court denied the motion. M&B appealed, invoking the collateral order doctrine as a basis for jurisdiction.

The Fifth Circuit held that three conditions must be met for a collateral order appeal:

  • the order must conclusively determine the disputed question;
  • it must resolve an important issue completely separate from the merits of the case; and
  • it must be effectively unreviewable on appeal from a final judgment.

The court found that an order denying a motion to dismiss under the Anti–SLAPP Statute satisfies all three requirements.

First, the district court’s order denying dismissal under the Anti–SLAPP Statute was conclusive as to the right to avoid the burden of litigation.

Second, the district court’s order resolved an important issue separate from the merits of the case because the purpose of an anti–SLAPP motion is to determine whether the defendant is being forced to defend against a meritless claim, not to determine whether the defendant actually committed the relevant tort. A plaintiff can defeat an anti–SLAPP motion by establishing a prima facie case for each element of the claim.

Third, the district court’s order was effectively unreviewable on appeal from a final judgment because the purpose of the statute is to confer immunity from suit, i.e., the right not to stand trial in the first place and to otherwise avoid the burdens of litigation; that immunity can be vindicated only by permitting an interlocutory appeal.

Unfortunately for M&B, after concluding that M&B could take an interlocutory appeal, the court affirmed the district court’s denial of M&B’s motion to dismiss insofar as it was based upon the Anti–SLAPP Statute.