The Law360 article on the Ninth Circuit’s en banc decision in Gopher Media LLC v. Melone features quotes California Appellate Law Podcast co-hosts Jeff Lewis and me on the significant shift in how anti-SLAPP motions are handled in federal courts, overturning more than two decades of Ninth Circuit precedent.
The Ninth Circuit held that denials of California anti-SLAPP motions can no longer be appealed mid-litigation, overruling its 2003 decision in Batzel v. Smith. The majority concluded that such denials are too “inextricably intertwined with the merits” of the case to fall under the collateral order doctrine, which allows certain interlocutory appeals.
As I told Law360, even under California’s own collateral order doctrine, anti-SLAPP denials wouldn’t qualify for immediate appeal because they go to the merits—which is why the Legislature created specific statutes making them appealable in state court. Federal courts, however, still lack any similar statutory path for early review.
Jeff Lewis added that the ruling “dilutes California’s anti-SLAPP law” and will likely lead to more forum shopping as defamation and speech-related plaintiffs choose federal court, where the protections are less robust. He also emphasized that the better solution would be a federal anti-SLAPP statute to bring consistency across jurisdictions.
The Ninth Circuit’s decision means that defendants in federal court can no longer pause litigation to appeal an anti-SLAPP denial. The ruling will likely result in more prolonged discovery, higher litigation costs, and increased strategic forum selection. While it closes one procedural door, it also underscores the need for clear federal standards protecting speech and early dismissal rights.
Many thanks to Law360 for including our perspectives in this important conversation about free speech, procedural fairness, and appellate practice.
Read the full article: “9th Circ. Changes Stance on Appeals of Anti-SLAPP Denials”
