By Josephine Petrick & Breana Burgos
2019 was another active year for federal appellate anti-SLAPP opinions. Most notably, the circuit split deepened over whether state anti-SLAPP laws even apply in federal court.
Despite an earlier trend of federal courts applying state anti-SLAPP laws under Erie, recent decisions may reflect a new trend toward limiting or even eradicating the application of state anti-SLAPP laws in federal court—even in the Ninth Circuit. Given the current robust circuit split and many intracircuit tensions discussed below, this is an issue that the U.S. Supreme Court or en banc circuit courts may be called on to resolve in the months and years to come. These developments are a further testament as to why Congress should consider enacting a federal anti-SLAPP law. Here’s an overview of the current circuit split and recent developments in 2019.