The Ninth Circuit has granted a petition for rehearing en banc in Martinez v. ZoomInfo Tech., Inc., No 22-35305 (Jan. 18, 2024). In March, the Ninth Circuit will consider whether California anti-SLAPP protections should continue to apply in federal court and whether the denial of an anti-SLAPP motion should be immediately appealable under the collateral order doctrine.
In general, the Ninth Circuit’s jurisdiction is limited to appeals from a district court’s final order. 28 U.S.C. § 1291. However, under the collateral order doctrine, an appellate court can review a district court’s ruling if the ruling is “conclusive,” “resolve[s] important questions separate from the merits,” and is “effectively unreviewable on appeal from the final judgment in the underlying action.” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009) (quoting Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 42 (1995)).
For the last 20 years, the Ninth Circuit has treated orders denying anti-SLAPP motions as collateral orders subject to immediate interlocutory appeal. See Batzel v. Smith, 333 F.3d 1018,1025-26 (9th Cir. 2003) (holding that the court had jurisdiction to review the district courts’ denial of the defendant’s anti-SLAPP motion); Langer v. Kiser, 57 F.4th 1085, 1104 (9th Cir. 2023) (“[t]he denial of an anti-SLAPP motion is an immediately appealable final decision pursuant to the collateral order doctrine.”)
However, the Ninth Circuit’s current jurisprudence on the applicability of anti-SLAPP statutes in federal court places it in the minority amongst other circuit courts. The Second, Seventh, Tenth, Eleventh, and D.C. Circuits do not recognize the applicability of anti-SLAPP statutes as mechanisms for motions to strike or dismiss in federal court. La Liberte v. Reid, 966 F.3d 79, 87 (2d Cir. 2020) (holding that California’s anti-SLAPP did not apply in federal court because it “answers the same question as Federal Rules 12 and 56); see also Intercon Sols., Inc. v. Basel Action Network, 791 F.3d 729, 732 (7th Cir. 2015) (holding that Washington’s anti-SLAPP is inapplicable in federal court); Los Lobos Renewable Power, LLC v. AmeriCulture, Inc., 885 F.3d 659, 673 (10th Cir. 2018) (holding that New Mexico’s anti-SLAPP statute is inapplicable in federal court); Carbone v. Cable News Network, Inc., 910 F.3d 1345, 1356–57 (11th Cir. 2018) (holding that Georgia’s motion to strike provision of the anti-SLAPP does not apply in federal court); Abbas v. Foreign Pol’y Grp., LLC, 783 F.3d 1328, 1333–34 (D.C. Cir. 2015) (rejecting application of D.C. anti-SLAPP Act, explaining that the D.C. Anti-SLAPP Act “conflicts with the Federal Rules by setting up an additional hurdle a plaintiff must jump over to get to trial.”)
While the Ninth Circuit has consistently upheld the applicability of anti-SLAPP motions in federal court, several judges within the circuit have challenged the appropriateness of reviewing denial of anti-SLAPP motions under the collateral order doctrine. See Martinez v. ZoomInfo Tech., Inc., 82 F.4th 785, 794–95 (9th Cir. 2023) (McKeown, J., concurring) (explaining that the Ninth Circuit’s current case law as to when the denial of an anti-SLAPP motion is appealable is “at odds with the venerable [Erie] doctrine”); id. at 797 (Desai, J., joined by McKeown, J., concurring) (“because anti-SLAPP motions to strike require the court to assess the merits of a plaintiff’s claims and are not effectively unreviewable on appeal from a final judgment, I join many of my colleagues and two of our sister circuits in concluding that the court lacks jurisdiction to consider denials of such motions on interlocutory appeal absent certification from the district court under 28 U.S.C. § 1292(b).”); Planned Parenthood Fed’n of Am., Inc. v. Ctr. For Med. Progress, 890 F.3d 828, 835 (9th Cir.) (Gould, J., joined by Murguia, J., concurring), amended, 897 F.3d 1224 (9th Cir. 2018) (“I now believe the interlocutory appeal of [denial of an anti-SLAPP] is incorrect, potentially conflicts with federal procedural rules, and burdens the federal courts with unneeded interlocutory appeals.”); Travelers Cas. Ins. Co. of Am. v. Hirsh, 831 F.3d 1179, 1182–86 (9th Cir. 2016) (Kozinski and Gould, JJ., concurring); Makaeff v. Trump Univ., LLC, 736 F.3d 1180, 1188 (9th Cir. 2013) (Watford, J., joined by Kozinski, Paez, & Bea, JJ., dissenting from denial of rehearing en banc) (explaining that neither the Ninth Circuit’s application of anti-SLAPP statutes in federal court nor the availability of interlocutory appeals from denials of anti-SLAPP motions are consistent with controlling Supreme Court precedent and should be reexamined en banc).
The petition is set to be heard in March. We would expect to see a decision sometime this summer. That decision could impact the strategy in bringing and defending against claims subject to an anti-SLAPP motion. This is surely a space to watch in the Ninth Circuit and potentially the Supreme Court.