Since the inception of California’s Anti-SLAPP statute, federal courts have grappled with how to adapt the law for application in federal proceedings. Federal courts sitting in diversity apply the substantive law of the jurisdiction in which they sit, but not the procedural law. The source of the shifting jurisprudence is the reality that the substance of the Anti-SLAPP law is to a large degree the procedure it imposes that allows for courts and litigants to quickly resolve a “Strategic Lawsuit Against Public Participation” (what the acronym “SLAPP” stands for), while minimizing the burden on the moving party by imposing a discovery stay, and providing for fees for a successful movant.

In the seminal case of U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 972 (9th Cir. 1999), the Court adopted the anti-SLAPP statute seemingly wholesale with respect to state law claims where a court is sitting in diversity. The Newsham court held there was no conflict between California’s Anti-SLAPP statute and the federal rules. The Court provided an illustrative example in reaching its conclusion:

A qui tam plaintiff, for example, after being served in federal court with counterclaims like those brought by LMSC, may bring a special motion to strike pursuant to § 425.16(b). If successful, the litigant may be entitled to fees pursuant to § 425.16(c). If unsuccessful, the litigant remains free to bring a Rule 12 motion to dismiss, or a Rule 56 motion for summary judgment. We fail to see how the prior application of the anti-SLAPP provisions will directly interfere with the operation of Rule 8, 12, or 56. In summary, there is no ‘direct collision’ here.

As clear from the above, the Newsham court viewed an anti-SLAPP motion as discrete from motions provided for in the Federal Rules of Procedure, and saw no issue in the availability of the motion alongside other motions provided for in the Federal Rules. From there the 9th Circuit began to chip away at the provisions of the anti-SLAPP statute. First to go was the stay on discovery upon the filing of an anti-SLAPP motion, and the default rule that wide ranging discovery cannot be conducted during the pendency of the motion. Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832, 846 (9th Cir. 2001). A few years later the Court did away with the requirement that claims be stricken with prejudice, applying the same standard as would apply on a motion to dismiss brought pursuant to Rule 12, that leave to amend should be granted unless the Court determines amendment would be futile. Verizon Delaware, Inc. v. Covad Commc'ns Co., 377 F.3d 1081, 1091 (9th Cir. 2004). That said, in both Verizon and Metabolife the court determined that a specific part of the anti-SLAPP statute conflicted directly with a federal procedural rule, but did not contradict the paradigm of Newsham, that the anti-SLAPP motion exists discrete from, and alongside the motions provided for in the Federal Rules of Procedure.

The court shifted the paradigm in Planned Parenthood Fed'n of Am., Inc. v. Ctr. for Med. Progress, along with the applicable legal standard on an anti-SLAPP motion. 890 F.3d 828, 831 (9th Cir.), amended, 897 F.3d 1224 (9th Cir. 2018). The Planned Parenthood court ended the discrete existence of an anti-SLAPP motion in federal court alongside Rule 12 (motions to dismiss) and Rule 56 motions (motions for summary judgement) and in essence converted the anti-SLAPP motion to a type of Rule 12 motion or Rule 56 motion depending on its content. The Planned Parenthood court directed that

when an anti-SLAPP motion to strike challenges only the legal sufficiency of a claim, a district court should apply the Federal Rule of Civil Procedure 12(b)(6) standard and consider whether a claim is properly stated. And, on the other hand, when an anti-SLAPP motion to strike challenges the factual sufficiency of a claim, then the Federal Rule of Civil Procedure 56 standard will apply.

Forcing anti-SLAPP motions into the rubric of the Federal Rules of Procedure greatly altered the legal standard on the motion. It remains that an anti-SLAPP motion can only be directed at claims arising from protected speech or petitioning activity in both California and federal courts. It also remains in both California and federal courts that where claims arise from protected activity, the claims as alleged must be legally sufficient, in that they adequately allege claims that would entitle the party to relief. Where the legal standards now diverge is that in California’s state courts it remains that a party whose claims are subject to an anti-SLAPP motion must also establish the claims have minimal merit by submitting admissible evidence as to each element of their claims. In federal courts the non-moving party must now only establish the elements of its claims by way of admissible evidence if the moving party makes an evidentiary challenge to the claims by submitting evidence to establish there is no triable issue of fact. With regards to the evidentiary element of the legal standard, federal courts have enlarged the moving party’s burden to require an evidentiary showing that does not exist in California’s state courts. The anti-SLAPP motion in California’s federal courts has been reduced to a largely one-way attorney-fee provision (there are limited exception for frivolous motions) that is applicable to certain types of claims, where a motion to dismiss or motion for summary judgment is made within 60 days of service of the pleading.

A plaintiff with little evidentiary support for claims directed at potentially protected activity would do well to find their way to federal court on diversity jurisdiction, as assuming their claims are adequately pled, the strategic lawsuit against public participation will have a much longer shelf-life and exact a higher toll on a target. As now, in federal court, the lawsuit will force the target to carry the cost of litigation until nearly the conclusion of discovery. For parties with substantial resources, sending a message to potential detractors or litigants will be worth the risk of eventually paying attorney fees for a motion, and that is assuming their target is able to prevail on the equivalent of a Rule 56 motion. For a party faced with a lawsuit alleging protected activity filed in federal court, if there is a high likelihood of prevailing on a motion to dismiss, it is worth considering reserving an evidentiary challenge on an anti-SLAPP motion to be made on a motion for summary judgment so that the anti-SLAPP motion will be heard in the near term. Having the anti-SLAPP motion heard in the near time will potentially resolve the litigation if the non-moving party is unsuccessful in securing leave to amend or amending. If there is little hope for prevailing on a motion to dismiss, but an evidentiary motion would likely be successful, a non-moving party should still file their anti-SLAPP motion with the aim of eventually securing fees on the motion, though there is little chance of avoiding the time and cost of discovery.