United States: Recent Decisions Hold Anti-SLAPP Acts Inapplicable In Federal Court; Increase Likelihood Of Supreme Court Review

Last Updated: July 14 2015
Article by Moxila A. Upadhyaya

Two recent decisions issued within days of each other have each held that the state anti-SLAPP act under review is inapplicable in federal court. These decisions call into question the continued applicability of such acts in federal court and increase the likelihood that the U.S. Supreme Court will eventually settle the issue. The two rulings, which address the Washington and Minnesota anti-SLAPP statutes, come on the heels of the recent decision of the U.S. Court of Appeals for the District of Columbia Circuit in Abbas v. Foreign Policy Group LLC. In Abbas, the D.C. Circuit created a circuit split when it became the first federal appeals court to rule that a local anti-SLAPP Act did not apply in federal court because the statute conflicted with the Federal Rules of Civil Procedure. Because a majority of states have enacted anti-SLAPP statutes, the rulings have broad implications for the manner in which cases involving political speech, public advocacy, and other exercises of rights of speech and press are litigated.

Anti-SLAPP Acts and the D.C. Circuit's Decision in Abbas

Many states have passed anti-SLAPP acts in an attempt to curb strategic lawsuits against public participation (SLAPPs). A SLAPP suit is one in which a plaintiff seeks to silence or punish its opponent, who is often speaking out against the plaintiff or is on the opposing side of a public debate. In filing a SLAPP lawsuit, the plaintiff does not necessarily seek to prevail on the merits, but rather seeks to chill and silence its opponent through litigation.

Although anti-SLAPP acts vary from state to state, many acts provide a mechanism for early dismissal of defamation or other tort claims on the merits, even where there are factual disputes at issue. For example, the three statutes discussed here—the Washington, Minnesota, and District of Columbia anti-SLAPP acts—all generally provide that, if the defendant makes a showing at the outset of the case that it was engaged in protected speech or activity under the statute, the trial court is required to dismiss the suit unless the plaintiff can show a likelihood that it will prevail on the claim. The vehicle for this early disposition is often called a "special motion to dismiss" or "special motion to strike." Other key features of anti-SLAPP acts generally include the dismissal of such claims with prejudice, the stay of discovery or the allowance of only limited discovery while the anti-SLAPP motion is pending, the expedited consideration of anti-SLAPP motions, and an award of attorneys' fees to the defendant who is the subject of a "SLAPP" lawsuit.

Until this year, the federal appeals courts which considered the issue held that the anti-SLAPP acts did not conflict with the Federal Rules of Civil Procedure, particularly the motion to dismiss and summary judgment procedures. On April 24, 2015, the D.C. Circuit ruled that the District of Columbia's Anti-SLAPP Act cannot apply in federal court because the Act's special motion to dismiss provision conflicts with those rules. The D.C. Circuit specifically held that the Federal Rules of Civil Procedure exclusively "establish the standards for granting pre-trial judgment to defendants in cases in federal court" and the anti-SLAPP Act dictated a pre-trial procedure that conflicted with those rules. The Abbas decision created a circuit split with the First and Ninth Circuits.

The Seventh Circuit's Intercon Decision

At the time of the Abbas ruling, a similar appeal was pending before the U.S. Court of Appeals for the Seventh Circuit in the case of Intercon Solutions, Inc. v. Basel Action Network, et al. In that case, the U.S. District Court for the Northern District of Illinois, examining the Washington state anti-SLAPP statute, similarly held that the law did not apply in federal court because it conflicted with the Federal Rules of Civil Procedure.

The defendants in the Intercon case appealed the district court's denial of their anti-SLAPP motion to the Seventh Circuit. In the interim, the Supreme Court of Washington sitting en banc held in Davis v. Cox that the Washington anti-SLAPP Act's special motion to strike procedure was unconstitutional because it violated the Washington constitution's right to trial by jury. According to the court, this is because the act "requires the trial judge to weigh the evidence and dismiss a claim unless it makes a factual finding that the plaintiff has established by clear and convincing evidence a probability of prevailing at trial." The court concluded that this procedure "invades the jury's essential role of deciding debatable questions of fact" and is, therefore, unconstitutional.

Given that the Davis ruling invalidated the very procedure upon which defendants relied in Intercon, defendants alerted the Seventh Circuit to the Davis opinion and conceded that their appeal was moot. Nevertheless, on June 29, 2015, the Seventh Circuit issued an opinion examining the issue and affirming the district court.

Writing for the court, Judge Frank H. Easterbrook noted that the appeal involved "an important and debatable issue that is open in the Seventh Circuit." The court affirmed the district court's denial of defendants' special motion to strike under the Washington anti-SLAPP Act, albeit on the holding of Davis rather than on the reasoning of the district court. Although the Seventh Circuit did not conclude that the anti-SLAPP act conflicted with the Federal Rules of Civil Procedure, the court left that question open for another day. In so doing, however, the Court reiterated that "[f]ederal rules prevail in federal court" and suggested that, had the Davis court held that the Washington anti-SLAPP act could be "disentangled" into its procedural and substantive parts, the Seventh Circuit might have found the state procedures inapplicable in federal court. The Seventh Circuit's ruling confirms the court's view that this is an important issue it will likely take up squarely in the future.

The U.S. District Court for the District of Minnesota's Unity Healthcare Decision

Just days before the Seventh Circuit's decision in Intercon, the U.S. District Court for the District of Minnesota also held a state's anti-SLAPP act inapplicable in federal court in Unity Healthcare, Inc. v. County of Hennepin. Examining Minnesota's anti-SLAPP statute and noting that the Eighth Circuit had not yet weighed in on the issue, the court held that the statute "collides head-on" with the Federal Rules of Civil Procedure's summary judgment rule. As a result, the state anti-SLAPP act cannot be applied in federal court. The court noted that the Minnesota act "turns judges into pre-trial factfinders who must decide factual disputes by assessing credibility and weighing evidence . . . without drawing inferences in favor of the nonmoving party." This, the court said, is "anathema" to the federal summary judgment procedures, which prohibit such pre-trial fact finding. In short, the court held that, because the federal rules and the state anti-SLAPP act could not "be brought into harmony," the state law could not apply in federal court.

Should the defendants appeal the district court's ruling in Unity Healthcare, the Eighth Circuit may add its view to the current circuit split.

Practical Effect

These rulings reflect a further division among federal courts and a potential shift as to the availability of anti-SLAPP defenses in certain cases. Of course, practitioners litigating the Washington, Minnesota, and District of Columbia anti-SLAPP motions procedures should be familiar with how the rulings may be binding on them. Given the recent case law, however, practitioners in other jurisdictions on either side of an anti-SLAPP motion should be aware of the arguments being raised.

In federal court, plaintiffs can avoid an anti-SLAPP motion by filing suit in federal courts that follow Abbas or its reasoning. For plaintiffs filing in a federal circuit in which the matter has not yet been decided or which has already held that a state anti-SLAPP statute is applicable in federal court, plaintiffs may nonetheless consider arguing for the reasoning set forth in Abbas, Unity Healthcare, and the district court's opinion in Intercon. Other federal district court decisions provide support for the argument.

Defendants are presented with perhaps an even more immediate and difficult decision: defendants 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 potentially lose their ability to seek relief under the anti-SLAPP statutes. Defendants with viable grounds to remove to federal court should consider this issue when deciding whether to remove.

In state court, litigants on both sides of an anti-SLAPP motion should be aware of the Washington supreme court's ruling in Davis holding the anti-SLAPP special motion procedure unconstitutional and inapplicable even in state court. In the wake of the Davis ruling, other state and federal courts may be urged to examine (or reexamine) the issue of whether a state anti-SLAPP act violates a state right to a trial by jury or the Seventh Amendment to the U.S. Constitution.

Ultimately, practitioners on either side of the debate should closely monitor their respective federal circuits and the U.S. Supreme Court for additional decisions on these questions.

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.

In association with
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.