The Ninth Circuit's SLAPP battle.

One of my first blog posts was about the Ninth Circuit’s decision to consider, en banc, whether the denial of an anti-SLAPP motion is immediately appealable. In that post, I bet that the Ninth Circuit would overrule its prior caselaw allow immediate appeals—especially because Chief Judge Marguia was a vocal critic of this precedent, and she would be guaranteed to sit on the en banc court.

Unfortunately, I didn’t put any money on my prediction. As expected, in Gopher Media LLC v. Melone, the Ninth Circuit overruled its prior caselaw in an opinion by Chief Judge Marguia, holding that orders denying anti-SLAPP motions are not immediately appealable under the collateral order doctrine (which provides an exception to the requirement that appeals wait until final judgment).

As a refresher, an order is reviewable under the collateral order doctrine only if it: (1) is “conclusive,” (2) “resolve[s] important questions separate from the merits,” and (3) is “effectively unreviewable on appeal from the final judgment in the underlying action.” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009). In Gopher Media, the Ninth Circuit concluded that anti-SLAPP denials don’t meet prong two or three of this test. The court held that anti-SLAPP motions are not “completely separate from the merits” because the anti-SLAPP analysis is inherently factual as well as legal, and that anti-SLAPP denials are not effectively unreviewable because parties can seek review of the denial after final judgment.

Separately, some of the judges waged a concurrence war about whether anti-SLAPP motions should even be permitted in federal court. Judges Bennett and Callahan said yes, concluding that the anti-SLAPP statutes create a substantive right that must be applied in federal court. Judges Bress, Collins, Lee, and Bumatay said no, reasoning that the anti-SLAPP statutes create a procedural device, and thus do not apply in federal court.

Though the opinion of the court did not address this issue, it’s notable that there are at least four votes to strike the anti-SLAPP procedure from federal courts. With just two more favorable votes for the Judge Bress concurrence, we could see a massive shift in Ninth Circuit law on this issue. Practitioners should keep this internal dispute in mind, because I highly doubt we’ve seen the last of it.