Unless something unexpected happens, the Abbas v. Foreign Policy Group appeal will force the DC Circuit to expressly decide whether the DC anti-SLAPP statute applies in federal court (the so-called “Erie” issue).  (For background on the defendants’ anti-SLAPP motion, see this post; for a summary of Abbas’ opposition, the District of Columbia’s amicus brief and the defendants’ reply brief, see this post; for an analysis of the District Court’s decision, see this post).

The major thrust of Yasser Abbas’s DC Circuit opening brief, filed earlier this week, is that the district court erred in applying the DC anti-SLAPP statute in federal court.  Echoing arguments it made below, and relying heavily on Judge Wilkins’ opinion in 3M v. Boulter, Abbas argues that the DC anti-SLAPP statute requires that the court apply a different standard when considering the motion, and thus conflicts with Federal Civil Procedure Rules 12 and 56, and that it violates the Seventh Amendment right to jury by allowing a judge to decide disputed issues of fact.  (The Seventh Amendment argument was not made in the district court; I suspect Abbas borrowed it from the plaintiff in Adelson v. Harris.  There, the District of Columbia filed an amicus brief in response, as I anticipate it will do here).  Abbas’s brief also notes that, while the district court partially relied on the Ninth Circuit for its finding that the DC anti-SLAPP statute applies in federal court, there is now a “sharply divided” split among the Ninth Circuit judges on that issue.

After spending 26 pages arguing why the statute should not apply in federal court, Abbas half-heartedly argues that, even if it applies in federal court, he is nevertheless likely to prevail on the merits.  The majority of this “argument” is boilerplate DC libel law or empty rhetoric that is not persuasive.

As a result, it is likely that the Abbas appeal will turn on the threshold question of whether the DC anti-SLAPP statute applies in federal court.  The DC Circuit suggested that it does in Sherrod v. Breitbart, holding that the anti-SLAPP motion there was not timely made.  In Farah v. Esquire, the DC Circuit sidestepped the “Erie” issue by affirming dismissal under Rule 12(b)(6).  In Abbas, however, because the district court granted the anti-SLAPP motion, it held that the companion Rule 12(b)(6) motion was moot.  The DC Circuit will thus be forced to confront the “Erie” issue.

A similar scenario is playing out 200 miles to the north, in the Second Circuit.  There, Sheldon Adelson’s brief, filed last week, also directly challenges whether an anti-SLAPP statute (there, Nevada) applies in federal court.  Stay tuned.