Law360 Guest Article: A Victory For State Anti-SLAPP Laws


As more states adopt anti-SLAPP legislation (i.e. Oklahoma’s passage this spring and Nevada’s expansion of its anti-SLAPP statute last year), more federal courts must decide whether such laws create a substantive right that should be applied by the federal judiciary. In a recent precedent-setting opinion, the Southern District of Texas applied the Texas anti-SLAPP law, also called the Texas Citizens Participation Act, in the wake of timely filed objections, ruling for the first time that the act created a substantive right. With no federal anti-SLAPP statute on the books and a circuit split on whether state anti-SLAPP statutes are procedural or substantive, this federal court opinion provides a boost to the effectiveness of state anti-SLAPP laws everywhere.

For example, the U.S. Court of Appeals for the Ninth Circuit has analyzed California’s anti-SLAPP law and determined that the California anti-SLAPP statute invokes important substantive interests and it applies in federal court under the Erie analysis. Illinois’ anti-SLAPP statute has also been applied in federal court. However, federal courts in Massachusetts have held that anti-SLAPP laws are primarily procedural in nature and declined to apply the statute in federal court. Some federal courts have applied Washington, D.C.’s anti-SLAPP in federal court while others haven’t, thus creating a split within D.C.

Excerpted from Law360, July 16, 2014. To view full article, click here (subscription required).

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