The anti-SLAPP statute allows defendants to challenge complaints that chill the rights to speak and petition. But the rights to speak and petition have blurry and elastic boundaries. So often plaintiffs with legitimate claims get stuck defending SLAPP motions.
Worse, when the plaintiff defeats a meritless SLAPP motion, the defendant gets to appeal.
That’s what happened—twice—in the now-seven-year-old case of Flo & Eddie, Inc. v. Pandora Media, LLC, 2022 WL 1800780 (9th Cir. Jun. 2, 2022). The founders of The Turtles sued Pandora for failing to pay for playing Turtles songs. Pandora filed anti-SLAPP motions arguing playing music was protected speech. Two appeals and seven years later, Pandora lost.
Judge Daniel Bress wrote a concurring opinion saying this is too much to take. The federal rules do not provide for the appealability of denials of anti-SLAPP motions. Instead, they have been held to be appealable as “collateral orders.” But a collateral order is an order that, among other things, is “completely separate from the merits of the action.” Will v. Hallock, 546 U.S. 345, 349 (2006). And an anti-SLAPP motion explicitly requires the moving party to prove the complaint lacks merit. So, by definition, an anti-SLAPP denial is not a collateral order.
This is not a new argument. Judge Bress favorably cited the concurrence of Judge Watford, joined by then-Chief Judge Kozinski and Judges Paez and Bea, in Makaeff v. Trump Univ., LLC, 715 F.3d 254, 261 (9th Cir. 2013), where the same reasoning was offered.
In Makaeff, the majority rejected that reasoning, holding that “while the inquiry on the motion to strike may glance at the merits, its central purpose is to provide an added statutory protection from the burdens of litigation that is unavailable during the ultimate merits inquiry.”
Of course, that could be said of motions to dismiss or for summary judgment, and denial of those motions are not collateral orders. So the Makaeff holding is not wholly satisfying.
Judge Bress also noted that the 9th Circuit’s precedent making SLAPP orders appealable as collateral orders is falling out of step with other circuits, including the 2nd, 7th, 10th, and D.C. Circuits, and more recently the 11th Circuit.
Here is another nuance to keep in mind:
An order granting a SLAPP motion is a final order, and immediately appealable as a final order under 28 U.S.C. § 1291. But an order granting a SLAPP motion is not listed in FRAP 58, which requires final orders other than those listed in rule 58 to be formalized in a separate document—a judgment. Without the judgment, § 1291 final orders not listed in rule 58 are still appealable, but the deadline to file the notice of appeal is 150 days, rather than the usual 30.
But an order denying a SLAPP motion is appealable as a collateral order, rather than as a final order under § 1291. So rule 58 seemingly does not apply. Thus, the deadline to appeal a denial of a SLAPP motion is 30 days. In contrast, the deadline to appeal a grant of a SLAPP motion may be 30 days, or it may be 150 days if a separate judgment is not entered.
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
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