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Trump University Anti-SLAPP Case Denied En Banc Rehearing

By William Peacock, Esq. | Last updated on

Back in April, a Ninth Circuit panel issued a decision that, for the most part, was relatively straight-forward under controlling law.

A disgruntled former Trump University student took to the Internet, and the courts, to express her thoughts that TU was a rip-off, and was met with a defamation suit in response. She (Anti-)SLAPP(ed) back, using the California-based semi-procedural mechanism against TU. The Anti-Strategic Lawsuits Against Public Participation device allows a person to fight back against lawsuits that "masquerade as ordinary lawsuits but are intended to deter ordinary people from exercising their political or legal rights."

The court's ruling, that Trump University was a public figure for purposes of discussing its own merits (it had launched an advertising campaign trump-eting its virtues), and that the Anti-SLAPP lawsuit could proceed, wasn't the real gem of the case, however. The true dispute, raised by Chief Judge Alex Kozinski's concurrence, was whether Anti-SLAPP should be available in federal courts at all.

Was Newsham Wrongly Decided?

In 1999, the Ninth Circuit held that state Anti-SLAPP statutes could be applied in federal courts. Kozinski argued in the concurrence that Anti-SLAPP suits create no substantive rights, and instead, are purely procedural mechanisms. Under the Erie Doctrine, state procedural devices aren't available in federal courts.

In the dissent from the denial of en banc rehearing, Judge Watford also noted that the Supreme Court's 2010 holding in Shady Grove, which nixed a New York law that conflicted with Federal Rule 23's procedures for class action diversity cases, controlled here, as anti-SLAPP conflicts with Federal Rules 12 and 56, which "[t]aken together, ... establish the exclusive criteria for testing the legal and factual sufficiency of a claim in federal court."

To recap SLAPP basics, the movant must make a prima facie showing that the suit arises from an act in furtherance of the defendant's constitutional right to free speech. The burden then shifts to the plaintiff to establish a reasonable probability that it will prevail on its claim in order to survive dismissal.

Not Quite, Says Majority

After reminding the dissent that en banc rehearings are only granted in "exceptional" cases, and arguing that this case was far from exceptional, the majority argued that the dissent's reliance on Shady Grove was misplaced. In that case, the New York rule, restricting class certification, conflicted directly with the applicable federal rule.

Here, even if an Anti-SLAPP motion is denied, Federal Rules 12 and 56 are still available as a back-up. If anything, the rules and Anti-SLAPP are redundant, not conflicting.

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