United States: D.C. Circuit's Anti-SLAPP Decision Affects Federal Lawsuits Involving Statements Made By Bloggers About Products Sold By Marketers

Last Updated: April 30 2015
Article by Ari N. Rothman and Moxila A. Upadhyaya

Marketers often file defamation, trade libel, false advertising, and other claims against bloggers and others who make alleged false statements about the products marketed and sold by the marketers. In response, the bloggers often defend on the ground that the statements they made are true, consist of their opinions, and constitute free speech. And, in states with Anti-SLAPP statutes, the bloggers and others involved in making those statements can seek early dismissal of those suits, and even obtain attorneys' fees, if they can show that they merely exercised their free speech rights. But the U.S. Court of Appeals for the District of Columbia Circuit's recent decision in Abbas v. Foreign Policy Group LLC holds that the District of Columbia's Anti-SLAPP statute does not apply in D.C. federal court, thereby allowing marketers to deprive their opponents of Anti-SLAPP protections by filing their suits in federal court. This ruling opens the door for other jurisdictions to follow suit, and could mark the beginning of a nationwide trend that could affect how marketers and bloggers litigate their cases.

The Anti-SLAPP Act

In 2010, the District of Columbia enacted the D.C. Anti-Strategic Lawsuit Against Public Participation Act, or the D.C. Anti-SLAPP Act, to address an increase in "lawsuits filed by one side of a political or public policy debate aimed to punish or prevent the expression of opposing points of view." The Anti-SLAPP Act allows a party sued for exercising an "act in furtherance of the right of advocacy on issues of public interest" to seek early dismissal of the case with prejudice before discovery or other costly proceedings occur.

In operation, a defendant files a "special motion to dismiss" to establish that the plaintiff's claim is aimed at chilling the defendant's right to engage in protected activity under the Act, and that the plaintiff's case is not likely to succeed on the merits. If the defendant's motion is successful, the court must dismiss the case with prejudice and may award the defendant its attorneys' fees and litigation costs. But if the motion is frivolous or brought solely to cause unnecessary delay, then the court may award attorneys' fees to the non-moving party.

The D.C. Anti-SLAPP Act falls in line with many other states that have enacted similar legislation, including California, New York, Pennsylvania, and Maryland.

Abbas Decision

On April 24, 2015, the U.S. Court of Appeals for the District of Columbia Circuit issued its Abbas decision, which is the first federal appellate decision holding that a state Anti-SLAPP statute does not apply in federal court. In Abbas, the plaintiff, Yasser Abbas, son of Palestinian leader Mahmoud Abbas, sued a reporter and the Foreign Policy Group for defamation in connection with statements made in an article on the Group's website about Abbas and his brother. Defendants filed a special motion to dismiss under D.C.'s Anti-SLAPP Act, arguing that the statements furthered their rights of advocacy on issues of public interest. The district court granted the motion, dismissed plaintiff's case, and plaintiff appealed.

On appeal, the D.C. Circuit held that the D.C. Anti-SLAPP Act cannot apply in federal court because the Act's special motion to dismiss provision conflicts with the Federal Rules of Civil Procedure. This is so, according to the court, because the Federal Rules of Civil Procedure exclusively "establish the standards for granting pre-trial judgment to defendants in cases in federal court." Thus, the Court held that a "federal court must apply those Federal Rules instead of the D.C. Anti-SLAPP Act's special motion to dismiss provision." Therefore, litigants may not invoke the D.C. anti-SLAPP statute in D.C. federal court. The D.C. Anti-SLAPP Act remains applicable to cases litigated in D.C. Superior Court.

Split Among Federal Circuits

The Abbas decision conflicts with the Ninth Circuit's 1999 decision in Newsham v. Lockheed Missiles & Space Co., in which the Ninth Circuit held for the first time that litigants may invoke California's Anti-SLAPP statute in federal courts. The First Circuit's 2010 decision in Godin v. Schencks is consistent with the Ninth Circuit's holding in Newsham. Moreover, the issue of whether a state's anti-SLAPP statute may be applied in federal court is currently pending before the Seventh Circuit.

Notwithstanding this apparent conflict among the federal courts of appeals, the current trend appears to coincide with Abbas. Indeed, as the D.C. Circuit noted in Abbas, two judges of the Ninth Circuit—Judge Alex Kozinski and Judge Paul J. Watford—recently expressed disagreement with the Ninth Circuit's long-standing precedent. As Judge Kozinski wrote, "Newsham was a big mistake . . . Federal courts have no business applying exotic state procedural rules which, of necessity, disrupt the comprehensive scheme embodied in the federal rules." Given the frequency with which Anti-SLAPP motions are litigated in California, a ruling that precludes litigants from filing Anti-SLAPP motions in California federal courts would vastly affect California federal litigation practice.

Practical Effect

The Abbas decision has broad applicability to and implications for marketers and bloggers involved in cases involving free speech. This is because whether a state's Anti-SLAPP protections apply to lawsuits involving marketers and bloggers will, in many instances, turn on whether the jurisdiction in which the suits are brought follows Abbas. Although Anti-SLAPP protections will not apply in federal courts following Abbas, Anti-SLAPP protections will apply in federal courts that reject it. Therefore, marketers anticipating an Anti-SLAPP motion can easily avoid such a motion by filing their lawsuits in federal courts that follow Abbas or its reasoning (assuming, of course, that the federal courts otherwise have jurisdiction over the lawsuits). Likewise, bloggers sued in state court with viable Anti-SLAPP motions must decide in short order whether to keep the case in state court to invoke the statutes' protections or remove to federal court and lose their ability to seek relief under the Anti-SLAPP statutes.

Under Abbas, litigants with cases pending in the District of Columbia must now devote particular attention to potential Anti-SLAPP motions when deciding where to sue and whether to remove to federal court. And, litigants in other jurisdictions should be mindful of the circuit split and formulate their litigation strategy accordingly.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions