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Saturday, August 24, 2019

More on SLAPP laws in federal court

The Fifth Circuit on Friday held that Texas's SLAPP law does not apply in federal court on diversity, following the (correct) analysis from the D.C., 10th, and 11th Circuits that the state law conflicts with FRCP 12 and 56 by adding an additional hurdle to trial. This decision complicates the circuit split because the 5th Circuit had held in 2009 that Louisiana's SLAPP law applies in federal court. The panel held it was not bound by circuit precedent. It was pre-Shady Grove, which the panel says sharpened the proper analysis. And the Texas law is different than the Louisiana law; the latter uses standards that look like summary judgment, while Texas imposes higher standards that more "manifest[ly]" conflict with the Federal Rules.

I doubt this will be the case on which SCOTUS will resolve the question, at least not immediately. The first move will be en banc reconsideration on the Fifth Circuit to resolve its internal split.

My conclusion on the overall Erie question is that the "special motion" provisions should not apply in federal court but fee-shifting provisions should. The question is whether that sufficiently protects free-speech interests, by allowing litigation to last a bit longer (until the protections of NYT can do their work in an appropriate case), but allowing the defendant to recover attorney's fees, which recoups the defendant's major financial burden.

Posted by Howard Wasserman on August 24, 2019 at 11:26 AM in Civil Procedure, First Amendment, Judicial Process, Law and Politics | Permalink


I don't think this has to go en banc, at least, because this panel has held that Shady Grove abrogated the 2009 decision, which is now a binding holding in the Fifth Circuit on the precedential effect of that decision, obviating any intra-circuit split. (They also claim that they've said this about that decision before.)

Posted by: Asher Steinberg | Aug 24, 2019 6:38:14 PM

Fee recovery is a bit uncertain as a remedy or protection. There is collection, which is usually not recoverable. The defendant has to the resources to get through to the next stage, which is not trivial. And judges just can’t bear to make whole on fees. So not much comfort and not much protection.

Posted by: J. Bogart | Aug 24, 2019 1:06:35 PM

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