If you’re litigating a putative class action in federal court and get a class certification order that is adverse to your client (whether plaintiff or defense), you may petition to take an immediate appeal of that order. Fed. R. Civ. P. 23(f). The petition to appeal must be filed quickly—within 14 days. Id. The short turnaround time “is designed to reduce the risk that attempted appeals will disrupt continuing proceedings.” Fed. R. Civ. P. 23(f), Adv. Comm. Note (1998).
While Code of Civil Procedure section 425.16 is alive and well in state courts, the statute may be on its way out in federal diversity cases in the Ninth Circuit. A very recent opinion from that court calls for en banc review, ostensibly to rule that no immediate appeal is available from the denial of an anti-SLAPP motion. But as anyone familiar with the Ninth Circuit’s treatment of California’s anti-SLAPP statute knows, there is a movement afoot to rule that this creature of state procedure has no place at all in federal court. Will California’s anti-SLAPP statute survive?
The ability to launch a preemptive strike against suits attacking speech or petitioning rights shouldn’t depend on which federal circuit has jurisdiction over the district court action. Yet that is how it stands right now when it comes to state law anti-SLAPP statutes deployed in federal diversity actions. At some point the United States Supreme Court will need to resolve the circuit split.
As it stands, the First, Fifth, and Ninth Circuits have allowed anti-SLAPP motions to be brought in federal court. The D.C. Circuit, however, has rejected them. The remainder of the circuits have not yet weighed in, leaving the district courts below them to decide the issue in the first instance. This could mean that a defendant is stripped of anti-SLAPP protection if an action is filed in federal court.
In federal court, partial dismissals present plaintiffs with a difficult choice. They can seek an immediate appeal or continue litigating their live claims. But they cannot do both, though they are often motivated to do so. And defendants should be prepared to hold plaintiffs to that choice—as the Ninth Circuit indicated it was willing to do in comments during a recent oral argument.