Tuesday, May 22, 2012

Anti-SLAPP Motions in Federal Court

California business litigation attorneys need to be aware of the application of California's anti-SLAPP statute in federal court.  C.C.P. section 425.16 is a broad statute protecting written or oral statements in connection with a public issue or public debate.  It has been a wildly successful tool for defendants wishing to dismiss lawsuits at an early stage.  Successful defendants are entitled to attorneys fees and costs in California state court.

In the 9th Circuit, United States ex rel. Newsham v.Lockheed Missiles & Space Co., Inc., 190 F.3d 963 (9th Cir. 1999) held that California's anti-SLAPP statute is applicable to state law claims.  In state court, the ballgame is generally over after the granting of an anti-SLAPP motion as leave to amend is not provided.  In federal court, this is in contravention of Federal Rule of Civil Procedure 15 (a)'s policy of liberally granting plaintiffs leave to amend.  In Greensprings Baptist Christian Fellowship Trust v. Cilley, 629 F.3d 1064 (9th Cir. 2010), the 9th Circuit made statements indicating that California's anti-SLAPP statute does not prevent the granting of leave to amend subsequent to the granting of the special motion to strike.

The case of Verizon Delaware, Inc. v. Covad Communications Co., 377 F.3d 1081 (9th Cir.2004), leaves open the question of whether or not a defendant is entitled to attorneys fees if the plaintiff dismisses covered state law claims subsequent to the filing of the motion.  In superior court, the defendant is entittled to attorneys fees in this scenario.  Subsequent district court cases have found that a defendant recovers its attorneys fees only if the plaintiff later reasserts the same meritless state claims in an amended complaint.

Attorneys litigating anti-SLAPP issues in federal court need to be aware of the California statute's nuanced application and less than definitive caselaw. 

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