Anti-SLAPP fee-shifting in federal court

I have argued in prior posts that the solution to SLAPP suits is not the  heightened standards from state laws (which cannot apply in federal court) but attorney fee-shifting. The paradox has been that most fee-shifting provisions apply to actions disposed of under the statutory standard, but not under a different standard. Thus, if the state statutory standard does not apply and the case is resolved on a simple 12(b)(6), the fee-shift does not apply.

But not so with the Florida anti-SLAPP law, according to Judge Martinez of the Southern District of Florida. Florida law provides for fees for any action that is "without merit" and based on constitutionally protected speech. The determination that the action is without merit can be made under any procedural device, such as 12(b)(6) (as in this case). In other words, the statute is a garden-variety fee-shifting provision serving substantive policy ends, the same as other fee-shifting provisions held to apply in federal diversity actions. So an action dismissed on a 12(b)(6) can provide the basis for an award of fees.

This is unique to Florida's anti-SLAPP statute. But it produces a conclusion that balances the requirements of the REA/Erie/Hanna against First Amendment interests.