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Saturday, December 15, 2018

Deepening split on SLAPP laws in federal court

Earlier this month, SCOTUS denied cert in a case out of the Tenth Circuit holding that a state anti-SLAPP law does not apply in federal court under an Erie/Hanna analysis. This week, the Eleventh Circuit weighed in, agreeing that Georgia's law does not apply in an action action CNN.

If you are scoring at home, that is three circuits (1st, 5th, 9th) holding that SLAPP laws apply in federal court and three circuits (DC, 10th, 11th) holding they do not. The Ninth Circuit position is why Stormy Daniels owes Donald Trump $ 300,000 in attorney's fees. But the most recent cases are the three rejecting application.

I was surprised SCOTUS denied cert in the Tenth Circuit case, which had the benefit of using such egregiously incorrect analysis that it begged for correction, even if the Court agreed on the conclusion as to application. Maybe the Court will see the new case as a better vehicle, although because it involves reporting by a major-media outlet, it is less the paradigm SLAPP suit. Regardless, SCOTUS must weigh-in on this at some point.

Update: I have not hit this point in many posts on the subject, but in response to a few email queries: I believe the non-application side has the better argument. Rules 12 and 56 provide mechanisms and standards for weeding-out insufficiently pleaded or supported claims; they "answer the questions in dispute," leaving no room for state law to operate. And both rules are valid because arguably procedural and not abridging, enlarging, or modifying substantive rights. The issue is close and therefore makes a good exam or class hypothetical (I have used it for both).

Posted by Howard Wasserman on December 15, 2018 at 11:43 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink


It seems to me that one parallel to the "SLAPP problem" is the Rule 23 problem with timing. SLAPP provisions move the SLAPP inquiry to the front of the line temporally; they seldom actually change the substantive rights at issue (well, there's a good argument that Cal. Code Civ. Proc. § 425.16 does by requiring the speaker to be able, in essence, to beat summary judgment before taking discovery on truthfulness — even truthfulness on the object's intent/knowledge — but that's a case-by-case issue). Functionally, there's a similar process in class certification, with the imprecation that class certification is to be decided "at an early practicable time" (23(c)(1)(A)).

And lurking behind this is the question of attorney fee-shifting, because that's another parallel between SLAPP provisions and class certification that is distinct from what is traditionally construed as "substantive." Perhaps this is an unstated reason that the Supreme Court is trying to avoid getting involved, as it's a policy issue on which both reasonable and unreasonable minds can and do differ. Fundamentally, why should fees shift in defamation-like circumstances depending only upon when a decision is made (compare to 28 U.S.C. § 1928 and Rule 11)? What makes defamation and/or speech suppression procedurally different? I don't have anything resembling an answer, other than "neither the substantive law of defamation nor the procedural rules in court have kept up with changes in media, communications, etc. since the 1980s, and this is our attempt to try to level the playing field for some victims of misuse without actually having a significant debate on policy."

Posted by: C.E. Petit | Dec 16, 2018 12:43:28 PM

The first point is contestable. The Supreme Court (and lower courts) have narrowly construed rules to avoid collisions. Or, more relevant to what is happening here, courts have allowed specific state rules to fill gaps in more general Federal Rules, in the absence of any specific federal analogue.

The argument as to SLAPP laws goes something like this: Rule 12 deals with the sufficiency of a pleading based on the four corners and Rule 56 deals with the evidentiary basis for a claim following discovery. The SLAPP motion is a hybrid, looking at both the pleading and the pre-discovery evidentiary support. Such a hybrid is otherwise unknown in the FRCP. Thus, there is no federal law that directly "answers the question" of this hybrid issue, the court does an unguided Erie analysis, and (as is usually the case) state law should apply because state substantive issues are high and the outcomes would vary between federal and state courts.

Posted by: Howard Wasserman | Dec 16, 2018 12:04:35 PM

I don't see here real issue . The eleventh circuit , has well explained it , and followed clear guidance of the Supreme court , here I quote :

But the Supreme Court has explicitly rejected the notion that “the Federal Rules of Civil Procedure are to be narrowly construed in order to avoid a ‘direct collision’ with state law.” Walker, 446 U.S. at 750 n.9.

And more :

As the Supreme Court has explained, a federal rule does not exceed the scope of the power delegated the Act if it “really regulates procedure,” meaning that the rule governs “the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them.”

Finally this is because :

These Rules “affect[] only the process of enforcing litigants’ rights and not the rights themselves....


Posted by: El roam | Dec 15, 2018 2:58:37 PM

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