On September 27, 2013, the District of Columbia District Court applied D.C.’s anti-SLAPP act, D.C. Code § 16-5501 et seq., to a defamation lawsuit brought by wealthy businessman Yasser Abbas against the Foreign Policy Group and journalist Jonathan Schanzer. For those interested in the facts of the case, my earlier coverage of the case is here. On April 24, 2015, the Court of Appeals for the D.C. Circuit held that pretrial dismissal of claims brought in federal diversity cases is governed by Rules 12 and 56 of the Federal Rules of Civil Procedure, and that because the anti-SLAPP act purports to address the same question, it does not apply in federal court. Nevertheless, the court affirmed the district court’s dismissal of the case because the allegations were insufficient to state a claim for defamation under D.C. law.
The court summarized the workings of the anti-SLAPP statute as follows:
Under the Act as relevant here, a defendant may file a special motion to dismiss “any claim arising from an act in furtherance of the right of advocacy on issues of public interest.” D.C. Code § 16-5502(a). To obtain dismissal, the defendant first must make a “prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest.” Id. § 16-5502(b). If the defendant makes that prima facie showing, then the plaintiff must demonstrate that “the claim is likely to succeed on the merits.” Id. If the plaintiff makes that showing, the defendant’s special motion to dismiss must be denied. Otherwise, the special motion to dismiss must be granted. See id. (As we will see, that likelihood of success requirement is important to this case.) While a special motion to dismiss is pending, discovery is stayed except for limited purposes. Id. § 16-5502(c). A defendant who prevails on a special motion to dismiss may recover the costs of litigation, including reasonable attorney’s fees. Id. § 16-5504(a).
Citing Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 559 U.S. 393, 398-99 (2010), the court held that the anti-SLAPP law should not apply in federal court because “a federal court exercising diversity jurisdiction should not apply a state law or rule if (1) a Federal Rule of Civil Procedure ‘answer[s] the same question’ as the state law or rule and (2) the Federal Rule does not violate the Rules Enabling Act.”
The court found that the Federal Rules of Civil Procedure already have provisions that “answer the same question” as the D.C. Anti-SLAPP Act; namely, the circumstances under which a court must dismiss a plaintiff’s claim before trial. Under the anti-SLAPP Act, the plaintiff must show a likelihood of success on the merits. Under Federal Rules of Civil Procedure 12 and 56, on the other hand, no such showing is required. This is important, the court held, because under the Federal Rules, a plaintiff is generally entitled to proceed to trial if he or she survives both a motion to dismiss under Rule 12 and a motion for summary judgment under Rule 56.
Because D.C.’s law would impose an additional hurdle for plaintiffs to overcome in order to have their day in court (i.e., a requirement that plaintiffs show a likelihood of success on the merits), and because Rules 12 and 56 do not violate the Rules Enabling Act, the court held that federal courts sitting in diversity should not apply D.C.’s anti-SLAPP statute.