On July 15, 2020, the same day the ULC adopted its model anti-SLAPP Act, the Second Circuit held, in a matter of first impression, that the California anti-SLAPP statute did not apply in federal court. The holding in La Liberte v. Reid directly contradicts the Ninth Circuit’s long-standing holding in Newsham v. Lockheed, that the California anti-SLAPP law is primarily substantive and does apply in federal court.

The Second Circuit relied heavily on the Eleventh Circuit’s recent holding in Carbone v. CNN, in which the Court found that the “probability of prevailing on the merits” standard (found in both the California and Georgia anti-SLAPP statutes) was higher than that required under Federal Rules of Civil Procedure 12 and 56. Accordingly, the California anti-SLAPP law could not be applied in federal court.

On July 31, 2020, approximately two weeks later, in Clifford v. Trump, the Ninth Circuit concluded the Texas anti-SLAPP statute applied in federal court, in this instance breaking ranks with Fifth Circuit precedent in Klocke v. Watson. Though the Court recognized the Fifth Circuit’s recent ruling, it found that [T]he reasoning of the Fifth Circuit’s opinion cannot be reconciled with our circuit’s anti-SLAPP precedent, compare Newsham, 190 F.3d at 972 (“[T]here is no indication that [Federal Rules of Civil Procedure] 8, 12, and 56 were intended to ‘occupy the field’ with respect to pretrial procedures aimed at weeding out meritless claims.”), with Klocke, 936 F.3d at 247 (“Rules 8, 12, and 56 provide a comprehensive framework governing pretrial dismissal and judgment.”) Clifford v. Trump, 818 Fed. Appx. 746, 2020 WL 4384081, *2 (9th Cir. July 31, 2020). Both decisions deepened the divide and increased the confusion over whether state anti-SLAPP laws apply in diversity actions in federal court.

On August 5, 2020, a federal district court in Iowa (in the Eighth Circuit) decided Nunes v. Lizza, a lawsuit involving defamation claims against a Hearst reporter filed by California Congressman Devin Nunes, holding that the California anti-SLAPP law did not apply in federal court diversity cases. In prior years, courts in that circuit had split on the legal issue of whether state anti-SLAPP laws applied in federal court. Compare Harrington v. Hall County Bd. of Supervisors, 2016 WL 1274534 (D. Neb. Mar. 31, 2016) (finding a statute providing for attorney’s fees and costs substantive and thus permitting the filing of a motion for attorney’s fees under Nebraska’s anti-SLAPP statute) with Unity Healthcare, Inc. v. County of Hennepin, 308 F.R.D. 537 (D. Minn. 2015) (“Minnesota’s anti-SLAPP law is inapplicable in this case because it conflicts with Federal Rule of Civil Procedure 56.”), appeal dismissed, 2016 WL 11339506 (8th Cir. 2016).

A day later, on August 6, 2020, in Bongino v. The Daily Beast Co., LLC, a SLAPP lawsuit alleging defamation and trade libel filed by “an outspoken supporter of President Donald Trump” against a media company that had reported on the termination of his NRATV show, a federal district court in Florida granted the defendant’s motion to dismiss and awarded fees under the Florida anti-SLAPP law. The court held that the Florida statute’s right to prevailing party fees was “a garden variety fee shifting provision,” which was substantive and enforceable in federal court, notwithstanding the prior Eleventh Circuit decision (Carbone v. CNN) that rejected Georgia’s anti-SLAPP law, which it said had required a substantive, evidentiary determination of the plaintiff’s “probability” of prevailing that conflicted with remedies available under the federal civil rules.