March 05, 2012

In this article, Jenner & Block Partner Andrew J. Thomas examines the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute enacted by the California Legislature 20 years ago to protect the exercise of certain First Amendment petitioning rights.  He reports that California courts, for the most part, have rejected attempts to limit the statute's reach and, in 1997, the state legislature also amended the statute to provide expressly that it “shall be construed broadly.”  Mr. Thomas notes that defendants have increasingly invoked the anti-SLAPP statute in federal court, following decisions by the 9th Circuit that some of the California statute’s most attractive features – including fee-shifting and an immediate appeal from denial of an anti-SLAPP motion -- apply in federal, as well as state, court and he examines how the various aspects of the statute have been applied by the federal courts.  However, Mr. Thomas cautions, differences among the provisions of anti-SLAPP laws of other states within the 9th Circuit “have led to divergent results when litigants seek to take advantage of anti-SLAPP protections in federal court.”  As an example, he cites a case decided by the court last month in which, in the absence of a specific provision for immediate appeal in Nevada’s anti-SLAPP statute (which is present in the California law), the court refused to apply the collateral order doctrine and dismissed the defendant’s appeal for lack of jurisdiction.