On October 9, 2025, an en banc Ninth Circuit panel unanimously held that the denial of a special motion to strike under California's anti-SLAPP statute is no longer immediately appealable in the Ninth Circuit under the collateral order doctrine, reversing years of precedent set by the Ninth Circuit's 2003 decision in Batzel v. Smith. The panel chose not to decide whether anti-SLAPP statutes can continue to be used in federal cases in the Ninth Circuit, leaving prior precedent allowing such use intact for now.
Case Summary
Plaintiff Melone alleged defamation and other claims against Defendant Gopher Media, arising from statements that Gopher Media and its owner posted on Instagram and Yelp about Melone and a restaurant that he owns. Gopher Media moved to strike the claims under California's anti-SLAPP statute, Cal. Civ. Proc. Code § 425.16, arguing that the statements constituted protected speech on matters of public concern. The district court denied the motion on the grounds that the statements involved a private dispute that did not meet the statute's "public concern" requirement. On appeal, the parties did not raise the applicability of the anti-SLAPP statute in federal court, or the right to an interlocutory appeal from the denial of anti-SLAPP motions. But the Ninth Circuit raised those issues sua sponte, granting en banc review on two issues: (1) whether California's anti-SLAPP statute applies in federal court, and (2) whether the denial of an anti-SLAPP motion is immediately appealable under the collateral order doctrine.
On the second issue, the en banc panel held that orders denying motions under the anti-SLAPP statute are not immediately appealable because such orders do not resolve issues "completely separate from the merits of the action," and do not render the decision "effectively unreviewable on appeal from a final judgment." Opinion at 5. The panel expressly limited its decision to motions brought under California's anti-SLAPP statute, noting that it was not addressing "the application of the collateral order doctrine to other states' anti-SLAPP statutes." Id. at 15.
In reaching its decision, the en banc panel declined to decide the first issue on which review had been granted: whether the California anti-SLAPP statute may be used in federal diversity cases at all. Instead, it based its decision on the assumption that the statute is available in such cases. Id. at 3. Nevertheless, six of the en banc judges debated its overall applicability in two concurring opinions. On one hand, Judges Consuelo Callahan and Mark Bennett opined that part of the statute should apply in federal court, because its fee-shifting provision is a substantive right that is not inconsistent with the Federal Rules of Civil Procedure. Id. at 15-24. On the other hand, Judges Patrick Bumatay, Daniel Bress, Kenneth Lee, and Daniel Collins opined that the statute is purely procedural and conflicts with the Federal Rules of Civil Procedure, arguing that the Ninth Circuit should join the Second, Fifth, Tenth, Eleventh, and D.C. Circuits in restricting the statute's applicability in federal courts. Id. at 25-48.
Key Takeaways
- Orders denying motions to strike under California's anti-SLAPP statute are no longer immediately appealable as of right in the Ninth Circuit under the collateral order doctrine. The panel noted, however, that its decision does not affect a district court's ability to certify an immediate interlocutory appeal concerning the denial of an anti-SLAPP motion pursuant to 28 U.S.C. § 1292(b). Id. at 11, fn. 3. Under § 1292(b), a federal district court may certify an order for interlocutory appeal if (1) the order involves a "controlling question of law" about which (2) there is "substantial ground for difference of opinion"; and (3) an immediate appeal "may materially advance the ultimate termination of the litigation." Additionally, parties may still seek writ review of a denial of an anti-SLAPP motion under 28 U.S.C. § 1291 and federal common law.
- Parts of California's anti-SLAPP statute remain usable in the Ninth Circuit. The Gopher Media decision reiterated that where the anti-SLAPP statute applies in federal court, there are several key differences in how it applies in state court: (1) the law does not shift the burden to the plaintiff to present evidence showing a probability of prevailing; instead, where the statute applies, an anti-SLAPP motion in federal court is analyzed in the same way as a Rule 12(b)(6) motion to dismiss or a Rule 56 motion for summary judgment (id. at 20-21); (2) there is no automatic stay of discovery once an anti-SLAPP motion is filed (id. at 30); and (3) there is no bar on allowing a plaintiff to amend its complaint once an anti-SLAPP motion is filed (id. at 31). Now, the Ninth Circuit also has removed the right to interlocutory appeal from the denial of a motion, which is a key aspect of California's anti-SLAPP statute. But that does not mean an anti-SLAPP motion has no value; crucially, the panel reaffirmed that the fee-shifting provision of the anti-SLAPP statute is a substantive right that remains intact (at least for now). The ability to recover attorney's fees incurred in connection with an anti-SLAPP motion is arguably one of the most important aspects of SLAPP litigation.1
Kelli Sager, Dan Laidman, and Sam Turner filed an amicus brief on behalf of the First Amendment Coalition and Yelp Inc. in support of the applicability of the anti-SLAPP statute and defendants' rights to immediately appeal the denial of their anti-SLAPP motions.
Footnote
1. Although it remains to be seen exactly how courts will apply the anti-SLAPP statute in federal court following the Gopher Media decision—and whether there will be another en banc proceeding to reconsider the general use of the statute—the concurring opinion by Judges Bennett and Callahan suggests that the law might survive in the Ninth Circuit as, effectively, a fee-shifting overlay for successful motions to dismiss or summary judgment motions that dispose of claims that arise from protected conduct. That is how some federal courts in other circuits have continued to apply anti-SLAPP statutes, despite authority curtailing the general use of anti-SLAPP laws in those circuits. E.g., Heilbut v. Cassava Sciences, Inc., 778 F. Supp. 3d 551, 567 (S.D.N.Y. 2025) (explaining that while the Second Circuit has held that the California anti-SLAPP statute and similar laws do not apply in federal court, the fee-shifting provisions of the New York and Nevada anti-SLAPP statutes still may be invoked in federal cases).
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.
