State Anti-SLAPPs and Erie: Murky, but Not Chilling
Yando Peralta*
NOTE

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26 Fordham Intell. Prop. Media & Ent. L.J. 769
Note by Yando Peralta*

INTRODUCTION

[S]

omewhere on the periphery of Middle Eastern-American politics is the story of Yasser Abbas. Yasser Abbas is a businessman and the son of Mahmoud Abbas, leader of the Palestinian Authority. In 2012, Foreign Policy magazine published an article questioning the sources of Yasser Abbas’ wealth.^[1] The article alleged that Abbas had accumulated his wealth through his family lineage and political ties, as well as from American taxpayers.^[2] Abbas then sued Foreign Policy’s publisher in federal court in the District of Columbia.^[3] Foreign Policy sought a quick dismissal under the District of Columbia’s recently enacted anti-SLAPP statute.^[4] Anti-SLAPP statutes are meant to deter filing of meritless suits meant to chill free speech.^[5] District Judge Sullivan granted Foreign Policy’s motion and dismissed the suit.^[6]

Abbas appealed dismissal of his defamation suit on the ground that federal courts should not be governed by non-federal procedural devices—like the District of Columbia’s anti-SLAPP statute—aimed at implementing state and local anti-litigation policies.^[7] Deviating from the majority of other federal courts of appeals that have addressed the issue (i.e., the First, Fifth, and Ninth Circuits), the D.C. Circuit accepted Abbas’s federalist argument.^[8] The D.C. Circuit held that the District of Columbia’s special motion to dismiss statute did not apply in federal courts sitting in diversity.^[9] Employing the analysis laid out by the Supreme Court in Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co.,^[10] the D.C. Circuit found that Rules 12 and 56 of the Federal Rules of Civil Procedure govern in a federal diversity case, and therefore denied application of the District of Columbia’s special motion to dismiss statute.^[11] Admittedly, Abbas enjoyed only a Pyrrhic victory because the D.C. Circuit actually applied the federal rules to reach the same result, and affirmed the district court’s dismissal.^[12] Nevertheless, Abbas puts a federalist issue in free speech litigation front and center: Are federal courts required to accord deference to the twenty-eight states who seek to curb abusive litigation practices attacking free speech? Are they even permitted to do so?

This Note compares the different treatment of state anti-SLAPP laws in federal courts, especially in light of the Supreme Court’s decision in Shady Grove. This Note posits two reasons why special motions to dismiss should not apply in federal courts sitting in diversity jurisdiction. First, state anti-SLAPPs conflict directly with Rules 12 and 56 of the Federal Rules of Civil Procedure because these Federal Rules directly address the question as to dismissal on the pleadings and on summary judgment. Second, a finding that the state anti-SLAPP procedures conflict with the Federal Rules will not frustrate legislatures’ interests in swatting down chilling litigation. This is so because federal courts retain the power to screen meritless defamation suits through the available pleading and summary judgment rules.

Part I introduces the two main legal authorities whose convergence is the topic of this Note: state anti-SLAPP laws, provisions that either immunize certain speech or dismiss litigation chilling free speech; and Shady Grove,^[13] the most recent opinion on Federal Rule-state rule conflicts. Part II analyzes federal diversity cases applying anti-SLAPP special motions since Shady Grove, notably, Godin v. Schencks^[14] and Abbas v. Foreign Policy Group, LLC.^[15] It also looks at other courts’ responses to this problem. Part III then argues that federal courts should not apply anti-SLAPP provisions that generate powerful state-based motions to dismiss. Lastly, this Note concludes that the approach in Abbas and similar cases does not frustrate the aims of anti-SLAPP laws.

*      J.D. Candidate, Fordham University School of Law, May 2017; B.A., Classics, Bowdoin College, 2011. Thanks to Professor Benjamin Zipursky for his guidance, support, and thoughtful critique; thanks to the Board of the IPLJ for its generosity and assistance this year; and thanks to Dorothy Kadar for her unwavering love and friendship.