There has been a steady drumbeat to revisit the 9th Circuit’s precedent making anti-SLAPP orders appealable. Anti-SLAPP orders are similar to orders on motions to dismiss or for summary judgment, but they invoke specific state-law procedures—procedures that do not quite track with federal rule 12(b) or rule 56. And federal courts do not apply state procedures. Judge Bress has issued a number of opinions saying so, and urging his colleagues to revisit the circuit rule. (See here, here, and here.)
Well, Judge Bress may get his wish. The 9th Circuit vacated the panel decision in Martinez v. ZoomInfo Techs. (No. 22-35305 (9th Cir. Jan. 18, 2024)), and will hear the case en banc. Judges Desai and McKeown had concurred with the panel decision authored by Judge McKeown, but urged the court to reconsider its appealability rule extending to anti-SLAPP denials.
The case is brought by a labor union boss suing ZoomInfo, an online directory, for using her likeness in its directory above a link for visitors to subscribe to ZoomInfo’s service. ZoomInfo moved to dismiss under Rule 12(b)(6), and also filed an anti-SLAPP. The district court denied both, and ZoomInfo appealed.
The 9th Circuit observed that the denial of a Rule 12(b)(6) motion is not appealable. But while circuit precedent recognizes state anti-SLAPP laws as part of federal procedural law as quasi-Rule 12(b)(6) motions, it also says that anti-SLAPP denials—unlike 12(b)(6) denials—are appealable. What, Judges Desai and McKeown wrote separately to ask, is up with that?
The circuit precedent making anti-SLAPP denials appealable, Judge McKeown wrote, is in tension with the Erie doctrine. And while the denial of protections giving immunity from suit is immediately appealable, anti-SLAPP protections are not the same as immunity from suit. The 9th Circuit’s current precedent places it in the minority among its sister circuits. Judge McKeown concludes: “We have turned a blind eye to the incongruity of this practice—with Erie and with common sense—for too long.”
Note: Both concurring opinions emphasized anti-SLAPP denials. It remains to be seen whether the en banc panel will reconsider the rule as to orders granting anti-SLAPPs. But explaining why anti-SLAPP denials do not qualify as collateral orders, Judge Desai’s analysis does not provide any reasons that would not apply with equal force to grants.
