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November 07, 2019 Articles

Do State Anti-SLAPP Laws Apply in Federal Court?

The Fifth Circuit’s approach to Texas’s anti-SLAPP law provides a recent and important example of how the substance-procedure distinction can have practical consequences.

By Ashley J. Heilprin

Every attorney is taught that, under Erie Railroad Co. v. Tompkins, federal district courts sitting in diversity must apply the substantive law of the state in which the district court sits. 304 U.S. 64 (1938). But sometimes attorneys forget that not every state law is substantive: some state laws are procedural, and, in those cases, federal procedural rules take precedence.

The U.S. Court of Appeals for the Fifth Circuit’s approach to Texas’s anti-SLAPP law provides a recent and important example of how the substance-procedure distinction can have practical consequences.

Anti-SLAPP Laws and Texas: An Overview

Anti-SLAPP (strategic lawsuits against public participation) laws aim to preclude lawsuits seeking to chill First Amendment rights. Anti-SLAPP laws are in place in over 30 states and the District of Columbia. However, there are no anti-SLAPP laws at the federal level.

Texas’s anti-SLAPP law, enacted in 2011 as the Texas Citizens Participation Act (TCPA), is incredibly broad. The TCPA allows people who were practicing their First Amendment rights to move to dismiss cases quickly, suspend discovery, impose sanctions, and win costs and attorney fees. Under the TCPA, a motion to dismiss should be granted if the movant can show by a preponderance of the evidence that the action is based on the exercise of protected rights. However, if the nonmovant establishes by clear and specific evidence prima facie evidence for each element of the claim, the claim may survive dismissal.

Texas Anti-SLAPP Law: Conflict with Federal Rules

In Klocke v. Watson, the Fifth Circuit was confronted with whether the TCPA is a substantive law or a procedural rule. No. 17-11320, 2019 WL 3977545 (5th Cir. Aug. 23, 2019).

The Klocke case arose when college student Thomas Klocke tragically committed suicide after he was refused graduation due to allegations by Nicholas Watson of homophobic harassment. Klocke’s family then sued the univesity for violation of Title XI and Watson for defamation. In response, Watson filed a motion to dismiss the action under the TCPA. The U.S. District Court for the Northern District of Texas granted Watson’s motion to dismiss.

Klocke’s family appealed to the Fifth Circuit and argued that the TCPA’s standards for dismissal conflict with Federal Rules of Civil Procedure 12 and 56. Ultimately, a three-judge panel of the Fifth Circuit unanimously held that the TCPA conflicts with the Federal Rules. The Fifth Circuit held that

the test of whether a conflict between the Federal Rules and a state statute exists is not whether it is logically possible for a court to comply with the requirements of both, but whether the Federal Rules in question are “sufficiently broad to control the issue before the court.” . . . Because the TCPA’s burden-shifting framework imposes additional requirements beyond those found in Rules 12 and 56 and answers the same question as those rules, the state law cannot apply in federal court.

The Fifth Circuit’s opinion in Klocke largely tracks the Abbas v. Foreign Policy Group, LLC, opinion authored by now–Supreme Court Justice Kavanaugh, which held that the District of Columbia’s anti-SLAPP statute does not apply in federal court. 783 F.3d 1328, 1333 (D.C. Cir. 2015) (Kavanaugh, J.).

Klocke and Forum Shopping

The Fifth Circuit’s ruling provides an obvious opportunity for forum shopping in Texas as plaintiffs may be incentivized to file suit in federal court, where state anti-SLAPP protections are now inapplicable. Defendants may also be more inclined to seek remand to state courts, when plausible. Defendants sued in federal court are unable to move for early dismissal under the TCPA. Furthermore, defendants sued in a Texas state 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 TCPA. Thus, the Klocke decision promotes the type of forum shopping that the Supreme Court’s Erie decision sought to avoid.

State Anti-SLAPP Statutes in Federal Court: Circuit Split

While the Klocke decision clarifies that the TCPA does not apply in federal court, federal circuit courts remain split on whether anti-SLAPP statutes apply in federal court. See, e.g., Los Lobos Renewable Power, LLC v. Americulture, Inc., 885 F.3d 659, 668–69 (10th Cir. 2018) (holding that New Mexico’s anti-SLAPP statute is procedural and therefore does not apply in federal court); Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328 (D.C. Cir. 2015) (holding that D.C. anti-SLAPP statute does not apply in federal court); Godin v. Schencks, 629 F.3d 79, 88–92 (1st Cir. 2010) (holding that Maine’s anti-SLAPP statute applies in federal court); U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 972–73 (9th Cir. 1999) (applying California’s anti-SLAPP statute).

Additionally, 10 years ago, in Henry v. Lake Charles American Press, LLC, the Fifth Circuit held that Louisiana’s “nominally procedural” anti-SLAPP law, article 971 of its Code of Civil Procedure, applied in federal court. 566 F. 3d 164, 169 (5th Cir. 2009). The Fifth Circuit in Klocke distinguished the TCPA from article 971, holding that the TCPA “imposes higher and more complex preliminary burdens on the motion to dismiss process and imposes rigorous procedural deadlines.” Following Klocke, it is possible that Louisiana’s anti-SLAPP law may still apply in federal court.

Open Questions

The Texas Legislature amended the TCPA this past session. The reforms took effect on September 1, 2019, and included changes to the weighing of evidence, on which the Fifth Circuit heavily relied in its ruling in Klocke. It is unclear what impact the legislative changes will have following Klocke. Ultimately, to end the confusion and limit the potential for forum shopping, either the Supreme Court will have to resolve the circuit split over whether state anti-SLAPP statutes apply in federal courts, or Congress must past a federal anti-SLAPP law.

Ashley Heilprin is a commercial litigation associate in the New Orleans, Louisiana, office of Phelps Dunbar LLP. 

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