By Lisa B. Zycherman
In April, the D.C. Circuit held that the District of Columbia anti-SLAPP statute does not apply in a federal court diversity case because “Federal Rules 12 and 56 answer the same question as the anti-SLAPP Act’s special motion to dismiss provision.” The court’s decision provides an obvious opportunity for forum shopping in Washington, D.C., where libel plaintiffs are incentivized to file suit in federal court where anti-SLAPP protections are now inapplicable.
The case, Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328 (D.C. Cir. 2015), was a libel suit brought by Yasser Abbas, the son of Palestinian Authority President Mahmoud Abbas, against the Foreign Policy Group, publisher of Foreign Policy, and its reporter, Jonathan Schanzer. The action concerned an article about the plaintiff, which noted his wealth and posed rhetorical questions like, “Are the sons of the Palestinian president growing rich off their father’s system?” and “Have they enriched themselves at the expense of regular Palestinians?” Abbas sued in the U.S. District Court for the District of Columbia claiming the questions posed in the article defamed him. The defendants moved for dismissal pursuant to the District’s anti-SLAPP statute and won. Abbas appealed.
Although the defendants argued that the standard under the anti-SLAPP act mirrors Rule 56 and thus does not conflict with the federal rules, the D.C. Circuit rejected this argument as contrary to the intent of the D.C. Council and the language of the statute. The court concluded that Federal Rules of Civil Procedure 12 and 56 address “the circumstances under which a court must dismiss a case before trial,” meaning that the D.C. anti-SLAPP statute, which imposes a higher burden, cannot apply in federal court diversity actions. The D.C. Circuit acknowledged that other courts, including the 1st, 5th and 9th Circuits, have all held that anti-SLAPP statutes apply in federal court, notwithstanding Rules 12 and 56, but disagreed with those decisions, explaining that they are “not persuasive.” The court’s decision created a circuit-split as to whether anti-SLAPP statutes should apply in federal court alongside the federal rules.
Notwithstanding the court’s agreement with Abbas that the D.C. anti-SLAPP statute does not apply in a federal court diversity case, the D.C. Circuit affirmed dismissal of Abbas’ action on the basis that the questions posed in the article were not factual representations and thus not defamatory. It dismissed Abbas’ claims under Rule 12(b)(6) – a motion that the defendants made below, but which the district court found to be moot when it granted the anti-SLAPP motion.
The D.C. Circuit’s Abbas decision has serious consequences for litigants in the District. Libel defendants sued in federal court are unable to move for early dismissal under the D.C. anti-SLAPP statute. And defendants sued in D.C. Superior Court who are able to remove the case to federal court because of diversity jurisdiction are divested of any right to seek early dismissal in federal court under the D.C. anti-SLAPP law. In sum, the Abbas decision promotes precisely the type of forum-shopping the Supreme Court’s Erie decision was designed to avoid. Until Congress passes a federal anti-SLAPP statute or the D.C. Circuit or Supreme Court hold that anti-SLAPP statutes apply in federal court, D.C. plaintiffs will file their libel cases in federal court to avoid a possible anti-SLAPP motion.
Lisa B. Zycherman is an associate in Davis Wright Tremaine LLP’s Washington, D.C. office.