A showdown is fast approaching over whether the District of Columbia's law barring strategic lawsuits against public participation, or SLAPPs, can be applied in Washington's federal court.
The U.S. Court of Appeals for the D.C. Circuit is weighing an appeal of a lower court order denying a motion to dismiss under the law. In an order (PDF) last week, the court denied a motion for summary affirmance of the lower court's order by former U.S. Department of Agriculture official Shirley Sherrod, who sued now-deceased blogger Andrew Breitbart and his colleagues for defamation.
In the July 18 order, the court wrote only that "the merits of the parties' positions are not so clear as to warrant summary action." Before getting to the merits, the circuit opted to hear arguments on a motion filed by Sherrod to dismiss the appeal. Sherrod has argued that a ruling on a motion to dismiss under the anti-SLAPP law shouldn't be immediately appealable.
Judges David Tatel, Merrick Garland and Janice Rogers Brown will hear the case.
On the same day it hears arguments in Sherrod's case, the same appellate panel will hear arguments in another case involving the anti-SLAPP law. Washington attorney and political strategist Lanny Davis is appealing the denial of a motion to dismiss under the law against 3M Co., which sued Davis for defamation. The appeals court, in another order (PDF) on July 18, denied Davis' motion to formally consolidate his case with Sherrod's, but did issue an order (PDF) to schedule arguments on the same day.
Davis' case involves a similar procedural hurdle about whether the D.C. Circuit can hear an immediate appeal regarding an anti-SLAPP motion. On the merits, his case, like Sherrod's, involves whether the District's anti-SLAPP law can be applied in federal court.
The District is one of a growing number of jurisdictions nationwide to adopt an anti-SLAPP law, which offers an early route to dismissal for defendants who think they've been sued over protected speech. The Sherrod and Davis cases are widely seen as important tests of the law's scope.
The trial judges in both cases – U.S. District Judge Richard Leon in Sherrod's case and U.S. District Judge Robert Wilkins in Davis' case – found that the law conflicted with the federal rules of procedure. Sherrod's case also has to do with whether the law can apply retroactively to a case filed before the law went into effect in March 2010, an issue not at play in Davis' case.
A lead attorney for Breitbart, Eric Kuwana of Katten Muchin Rosenman, declined to comment about the D.C. Circuit orders and also about how the case will proceed in light of Breitbart's death. An attorney for Breitbart's co-defendant Larry O'Connor, Baker & Hostetler partner Bruce Brown, said that last week's orders were "great news."
"I think that the panel will benefit from hearing the two cases side-by-side because they raise so many similar issues," Brown said. "Certainly from our perspective it won't change the way we present the case."
An attorney for Sherrod, Thomas Clare of Kirkland & Ellis, declined to comment.
William Brewer III, a partner at Bickel & Brewer and lead counsel for 3M, said in a written statement that they were pleased the court denied Davis' motion to consolidate the cases. The court "has determined that these important issues – including the threshold question of whether it has jurisdiction over this appeal – should be decided with the benefit of oral argument," he said. "We remain confident that the appeal will be dismissed or that the trial court's decision will be upheld.”
A lead counsel for Davis, Raymond Mullady Jr. of Blank Rome, said that he thought the court's decision to assign the cases to the same panel to be heard on the same day "makes perfect sense as a matter of efficiency."
"A key issue in both cases is whether the D.C. Anti-SLAPP Act applies in federal court actions under the Erie doctrine," Mullady said. "We look forward to briefing and arguing this important issue to the Court."