En Banc 9th Circuit rethinking SLAPP laws in federal court

Two issues: 1) Whether the denial of the anti-SLAPP is immediately appealable under collateral order; 2) Whether attorney's fees are available (seemingly separate from the statute's procedural mechanisms). The parties seem to agree on #2, which is undoubtedly correct--the state fee provision does not collide with any federal rule and must apply in federal court under Hanna and the twin aims. So most of the argument focuses on the first issue. The appellee's concern was less with the legal question of whether SLAPP motions can be made in federal court and more with the timing of the SLAPP motion (several years into the litigation).

The briefing suggests that the Ninth Circuit has avoided the collision with the FRCP by incorporating the state law analysis into the FRCP--a SLAPP motion challenging the allegations is treated as a 12(b)(6), a SLAPP motion challenging the facts is treated as Summary Judgment. But that makes the COD issue more challenging--the plaintiff is basically seeking COD appeal of the denial of an ordinary 12(b)(6), rather than some special substance-bound-up procedure.

Appellee's counsel got into some trouble late when he asked the court to address the merits of the SLAPP motion (while arguing against COD jurisdiction) to avoid a third round of appeals. When a judge asked how they could do that, he asked the court to write an advisory opinion--that was received as you would expect.

Video after the jump.