The Ninth Circuit issued an opinion last week clarifying the standards applicable to anti-SLAPP motions in federal court, which is accompanied by a concurrence inviting the court to revisit its decision to hear anti-SLAPP appeals immediately. See Planned Parenthood Federation of America v. Center for Medical Progress, No. 16-16997 (9th Cir. May 16, 2018), http://cdn.ca9.uscourts.gov/datastore/opinions/2018/05/16/16-16997.pdf.

In Planned Parenthood, the plaintiff alleged that the defendants had used fraudulent means to enter the plaintiff’s conferences and obtain meetings with the organization’s staff to create false and misleading videos. The defendants filed a motion to dismiss the claims under Federal Rule of Civil Procedure 12(b)(6) and a special motion to strike the complaint under California’s anti-SLAPP statute, Cal. Civ. Code § 425.16. Under that statute, if the defendant can show the lawsuit targets protected activity, the plaintiff must show a “reasonable probability” of prevailing on its claims. Defendants can attack either the legal sufficiency of the complaint or present evidence demonstrating why the plaintiff cannot prevail.

The district court denied the anti-SLAPP motion. Because the defendants’ arguments under Rule 12 were identical to those in the anti-SLAPP motion, the district court concluded that it need only assess the sufficiency of the plaintiff’s complaint. When the defendants raised factual defenses, the district court held questions of fact precluded dismissal.

The Ninth Circuit affirmed the district court’s decision, and clarified the standards applicable to anti-SLAPP motions in federal courts. Adopting the holding from a previously unpublished decision, the court held that if the anti-SLAPP motion attacks the legal sufficiency of the plaintiff’s complaint, a court evaluates the motion using the standard under Rule 12 and Rule 8. Slip. Op. at 11 (discussing Z.F. v. Ripon Unified School District, 482 F. App’x 239, 240 (9th Cir. 2012)). If, on the other hand, a defendant’s motion attacks the factual sufficiency of the claim, “then the motion must be treated as though it were a motion for summary judgment and discovery must be permitted.” Id. (quoting Z.F., 482 F. App’x at 240).

The panel emphasized the apparent inconsistencies between California’s anti-SLAPP statute and the Federal Rules of Civil Procedure, holding that a contrary reading “would lead to the stark collision of the state rules of procedure with the governing Federal Rules….” And it rejected the defendants’ argument that a plaintiff is required to present evidence, holding that “if the defendants have urged only insufficiency of pleadings, then the plaintiff can properly respond merely by showing sufficiency of pleadings, and there’s no requirement for a plaintiff to submit evidence to oppose contrary evidence that was never presented by the defendants.”

Judge Gould, joined by Judge Murguia, concurred separately to urge the Ninth Circuit to revisit its longstanding practice of immediately reviewing the denial of anti-SLAPP motions under the collateral order doctrine. In their view, denial of an anti-SLAPP motion does not qualify as a collateral order because instead of resolving claims separate from the merits, “it in fact requires the court to directly assess the merits of Plaintiffs’ complaint.”

The judges stopped short of encouraging the full court to reconsider its decision to apply anti-SLAPP statutes in federal court, but noted that “one of the primary drivers for allowing this practice to continue—prevention of a circuit split—has occurred despite our best efforts.” Two circuits have declined to apply specific anti-SLAPP statutes in federal court. Abbas v. Foreign Policy Group, Ltd., 783 F.3d 1328, 1333 (D.C. Cir. 2015) (“A federal court must apply [the] Federal Rules instead of D.C. Anti-SLAPP Act’s special motion to dismiss provision.”); Los Lobos Renewable Power, LLC v. Americulture, Inc., 885 F.3d 659, 673 (10th Cir. 2018). Another has held that the denial of an anti-SLAPP motion is not immediately appealable. Ernst v. Carrigan, 814 F.3d 116, 119 (2d Cir. 2016). But in Makaeff v. Trump University, LLC, 736 F.3d 1180 (9th Cir. 2013), a majority of the Ninth Circuit refused to reconsider its decisions—since 1999—to apply anti-SLAPP statutes in federal court. In a concurrence, four judges wrote that “[r]efusing to recognize” the limitations placed on SLAPPs by seven state legislatures is “bad policy…. If we ignore how states have limited actions under their own laws, we not only flush away state legislatures’ considered decisions on matters of state law, but we also put the federal courts at risk of being swept away in a rising tide of frivolous state actions that would be filed in our circuit’s federal courts.” 736 F.3d at 1181-1187.