In CoreCivic, Inc. v. Candide Group, LLC, 46 F.4th 1136 (2022), the Ninth Circuit reaffirmed 20 years of decisions holding that special motions to strike under California’s “Anti-SLAPP statute” may be filed in federal diversity actions. As the court reflected, circuits have split over the federal implementation of the various states’ Anti-SLAPP motions. See id. at 1142–43. But the Ninth Circuit’s position on this question has been long settled. Id. at 1140. And the Ninth Circuit’s latest published opinion on the issue does not reconsider the merits of the issue or even attempt to defend its rule against the criticism it has faced from other circuits and even Ninth Circuit judges. See, e.g., Travelers Cas. Ins. Co. of Am. v. Hirsh, 831 F.3d 1179, 1182 (Kozinski, J. concurring). Rather, the decision merely explains the court’s refusal to reverse itself. The relative merits of its precedent and the strength of a party’s arguments against it are largely irrelevant; a Ninth Circuit panel is bound to follow the court’s past decisions except in exceptional circumstances. See id. at 1140–43.
So, what is a litigant to do when it has a need and good faith basis to challenge otherwise binding case law from intermediate appellate courts? Some discussion of the governing principles will help inform an approach.