Gopher Media LLC v. Melone

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GOPHER MEDIA LLC, a Nevada No. 24-2626

Limited Liability Corporation

D.C. No.

formerly known as Local Clicks

3:21-cv-01909-

doing business as Doctor Multimedia;

RBM-VET

AJAY THAKORE, an individual,

Plaintiffs - Appellants, OPINION

v.

ANDREW MELONE, an individual;

AMERICAN PIZZA

MANUFACTURING, a California

business entity also known as

American Pizza Mfg.,

Defendants - Appellees.

Appeal from the United States District Court

for the Southern District of California

Ruth Bermudez Montenegro, District Judge, Presiding

Argued and Submitted June 24, 2025

Seattle, Washington

Filed October 9, 2025

2 GOPHER MEDIA LLC V. MELONE

Before: Mary H. Murguia, Chief Judge, and Consuelo M.

Callahan, Milan D. Smith, Jr., Michelle T. Friedland, Mark

J. Bennett, Daniel P. Collins, Kenneth K. Lee, Daniel A.

Bress, Patrick J. Bumatay, Lawrence VanDyke and Holly

A. Thomas, Circuit Judges.

Opinion by Judge Murguia;

Concurrence by Judge Bennett;

Concurrence by Judge Bress

SUMMARY *

Anti-SLAPP Statute / Collateral Order Doctrine

Overruling Batzel v. Smith, 333 F.3d 1018 (9th Cir.

2003), and dismissing an appeal for lack of jurisdiction, the

en banc court held that a district court’s denial of a motion

to strike under the California anti-SLAPP statute does not

satisfy the requirements for an interlocutory appeal under the

collateral order doctrine.

Agreeing with other circuits, the en banc court held that

orders denying anti-SLAPP motions under California’s

statute are not immediately appealable because such orders

do not resolve issues “completely separate from the merits

of the action” and do not render the decision “effectively

unreviewable on appeal from a final judgment.”

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

GOPHER MEDIA LLC V. MELONE 3

For purposes of this opinion, the en banc court assumed

that California’s anti-SLAPP statute applies in federal court.

Concurring, Judge Bennett, joined by Judge Callahan,

wrote that he joined the majority opinion in full and wrote

separately to state that California’s anti-SLAPP special-

motion and attorney-fee-shifting provision create a

substantive right, and no federal rule controls or directly

collides with that right. Thus, the anti-SLAPP provisions

apply in federal court under Erie Railroad Co. v. Tompkins,

304 U.S. 64 (1938), and its progeny.

Concurring in the judgment, Judge Bress, joined by

Judges Collins, Lee, and Bumatay, wrote that it would have

been better for the en banc court to address the issue of

federal-court application, join the overwhelming majority

view, and hold that California’s anti-SLAPP statute is a state

procedural device that does not apply in federal court.

4 GOPHER MEDIA LLC V. MELONE

COUNSEL

Chase A. Cobern (argued), Munck Wilson Mandala LLP,

Dallas, Texas; Marina V. Bogorad and Anton N. Handal,

Munck Wilson Mandala LLP, Los Angeles, California;

Pamela C. Chalk, Doctor Multimedia, La Jolla, California;

for Plaintiffs-Appellants.

Owen M. Praskievicz (argued) and Daniel E. Gardenswartz,

Solomon Ward Seidenwurm & Smith LLP, San Diego,

California, for Defendants-Appellees.

Grayson Clary, Bruce D. Brown, Lisa Zycherman, Mara

Gassmann, and Abigail Sintim, Reporters Committee for

Freedom of the Press, Washington, D.C.; Theodore J.

Boutrous, Jr., Katie Townsend, Michael H. Dore, and

Zachary C. Freund, Gibson Dunn & Crutcher LLP, Los

Angeles, California; for Amici Curiae Reporters Committee

for Freedom of the Press and 25 Media Organizations.

Chad E. Deveaux, Patrick M. Ryan, Michael D. Abraham,

Tyler M. Cunningham, and Stephen E. Smith, Bartko Pavia

LLP, San Francisco, California, for Amici Curiae Los

Angeles Times and the California Hospital Association.

Daniel A. Laidman, Kelli L. Sager, and Samuel A. Turner,

Davis Wright Tremaine LLP, Los Angeles, California;

David Loy and Ann Cappetta, First Amendment Coalition,

San Rafael, California; James Daire, Yelp Inc., San

Francisco, California; for Amici Curiae First Amendment

Coalition and Yelp Inc..

GOPHER MEDIA LLC V. MELONE 5

OPINION

MURGUIA, Chief Circuit Judge:

We voted to decide this case en banc to reconsider the

appropriateness of our court’s interlocutory review of a

district court order denying a motion to strike under

California’s anti-SLAPP statute. 1 In Batzel v. Smith, 333

F.3d 1018 (9th Cir. 2003), we held that we have jurisdiction

to review such orders pursuant to the collateral order

doctrine. Upon reexamination, we now conclude that a

district court’s denial of a motion to strike under the

California anti-SLAPP statute does not satisfy the

requirements for an interlocutory appeal under the collateral

order doctrine. We reach this conclusion because such an

order does not resolve issues “completely separate from the

merits of the action” and does not render the decision

“effectively unreviewable on appeal from a final judgment.”

Will v. Hallock, 546 U.S. 345, 349 (2006) (quoting P.R.

Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S.

139, 144 (1993)). Accordingly, we overrule Batzel and

dismiss this appeal for lack of jurisdiction. 2

1

The SLAPP acronym stands for “Strategic Lawsuit Against Public

Participation.” Manzari v. Associated Newspapers Ltd., 830 F.3d 881,

886 (9th Cir. 2016). Anti-SLAPP statutes have been passed in various

states, including California, to combat “a disturbing increase in lawsuits

brought primarily to chill the valid exercise of the constitutional rights

of freedom of speech and petition for the redress of grievances.” Id.

(citing Cal. Civ. Proc. Code § 425.16(a)); see also FilmOn.com Inc. v.

DoubleVerify Inc., 439 P.3d 1156, 1160–61 (Cal. 2019).

2

We do not reconsider our precedent in United States ex rel. Newsham

v. Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir. 1999), and we

assume for purposes of this opinion that California’s anti-SLAPP statute

6 GOPHER MEDIA LLC V. MELONE

I

Although we are deciding this case as an initial matter en

banc, our jurisdictional analysis does not turn on the

particular factual allegations here. Therefore, we only

briefly recount the factual allegations and procedural details.

In July 2020, Appellee Andrew Melone opened Appellee

American Pizza Manufacturing (“APM”) in the La Jolla

neighborhood of San Diego, California. APM serves

uncooked pizzas and pasta that customers can bake at home.

This is commonly referred to as a “take-n-bake” business

model. Appellant Ajay Thakore is a La Jolla resident and

the owner of Appellant Gopher Media LLC. Gopher Media

“is a digital marketing agency.”

This case’s history began in late 2020 when the City of

San Diego converted the parking spaces outside of APM to

15-minute parking zones. As alleged in the underlying

countercomplaint, Thakore frequented businesses near

APM, including a competing business in which Thakore is

alleged to own a 25% financial stake, and parked his car in

the spaces outside of APM for extended periods of time.

Apparently upset with the new 15-minute time limit,

Thakore initiated a series of odd exchanges between the

parties, which culminated in this litigation. Thakore and

Gopher Media filed a lawsuit against Melone and APM in

the United States District Court for the Southern District of

California, alleging harassment, discrimination, unfair

competition, and other claims. Specifically, Thakore and

Gopher Media alleged that Melone called Thakore a racial

applies in federal court based on the principles set forth in Erie Railroad

Company v. Tompkins, 304 U.S. 64 (1938). See Newsham, 190 F.3d at

972–73.

GOPHER MEDIA LLC V. MELONE 7

slur, tried to intimidate Thakore from parking in front of

APM, and kicked Thakore’s handicapped dog. They also

alleged that APM falsely advertised its use of fresh

ingredients when the restaurant really uses “frozen crust.”

Melone and APM filed a countercomplaint alleging

defamation, trade libel, and unfair business practices.

Relevant to this appeal, the operative countercomplaint

alleges that Gopher Media, under the control of Thakore,

paid its employees to leave over one hundred negative

reviews of APM on websites such as Yelp.com and

Google.com, and that Thakore made false statements about

Melone and APM on his Instagram social media account.

In response to the countercomplaint, Thakore and

Gopher Media filed an anti-SLAPP motion to strike the

countercomplaint under California Civil Procedure Code

§ 425.16. They asserted that the internet reviews and other

comments were speech in relation to a public issue, and

therefore, the comments constituted protected First

Amendment speech. The district court denied the motion,

and Thakore and Gopher Media filed this interlocutory

appeal.

After hearing oral argument, a three-judge panel of this

court refrained from issuing a decision and instead directed

the parties “to file supplemental briefs addressing whether

this case should be heard en banc to reconsider (1) whether

California’s anti-SLAPP statute applies in federal court, and

(2) whether the denial of a motion to strike under

California’s anti-SLAPP statute is immediately appealable

under the collateral order doctrine.” As to the first question

posed by the three-judge panel’s order, neither side argues

in favor of overruling our precedent holding that the

California anti-SLAPP statute applies in federal court under

the Erie doctrine. As to the second question, Thakore and

8 GOPHER MEDIA LLC V. MELONE

Gopher Media argue that Batzel was correctly decided and

that the importance and independence of anti-SLAPP rights

make their denial subject to immediate appeal. In contrast,

Melone and APM assert that an order denying an anti-

SLAPP motion is unappealable under the collateral order

doctrine. They also highlight the potential for a defendant to

abuse the rule we adopted in Batzel by using the

interlocutory appeal process to unnecessarily delay

progression of a lawsuit.

A majority of the non-recused active judges agreed that

this case should be decided en banc so that our governing

precedent could be reconsidered. Gopher Media LLC v.

Melone, 129 F.4th 1196 (9th Cir. 2025) (mem.); Fed. R.

App. P. 40(g).

II

Generally, our jurisdiction is limited to appeals from a

final decision by the district court. 28 U.S.C. § 1291. But

the collateral order doctrine establishes “a narrow class of

decisions that do not terminate the litigation, but must, in the

interest of achieving a healthy legal system, nonetheless be

treated as final.” Digit. Equip. Corp. v. Desktop Direct, Inc.,

511 U.S. 863, 867 (1994) (citation modified). To fall into

this narrow class of appealable nonfinal orders, a district

court decision must “[1] conclusively determine the disputed

question, [2] resolve an important issue completely separate

from the merits of the action, and [3] be effectively

unreviewable on appeal from a final judgment.” Will, 546

U.S. at 349 (alterations in original) (quoting P.R. Aqueduct

& Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144

(1993)); see also Cohen v. Beneficial Indus. Loan Corp., 337

U.S. 541, 546–47 (1949). An issue is completely separate

from the merits if it is “significantly different” and

GOPHER MEDIA LLC V. MELONE 9

“conceptually distinct” from the “fact-related legal issues

that likely underlie the plaintiff’s claim on the merits.”

Johnson v. Jones, 515 U.S. 304, 314 (1995) (citation

omitted). A court considers whether an order is “effectively

unreviewable” by considering “the value of the interests that

would be lost through rigorous application of a final

judgment requirement.” Will, 546 U.S. at 351–52 (quoting

Digit. Equip. Corp., 511 U.S. at 878–79). In making the

“effectively unreviewable” determination, “we do not

engage in an individualized jurisdictional inquiry. Rather,

our focus is on the entire category to which a claim belongs.”

Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 107 (2009)

(citation modified). “The Supreme Court has repeatedly

emphasized that these requirements are stringent and that the

collateral-order doctrine must remain a narrow exception.”

SolarCity Corp. v. Salt River Project Agric. Improvement &

Power Dist., 859 F.3d 720, 724 (9th Cir. 2017).

In Batzel, we held that we have jurisdiction to review

orders denying anti-SLAPP motions under California’s

statute pursuant to the collateral order doctrine. We

concluded that the “[d]enial of an anti-SLAPP motion

resolves a question separate from the merits in that it merely

finds that such merits may exist, without evaluating whether

the plaintiff’s claim will succeed.” Batzel, 333 F.3d at 1025.

We also reasoned that “[i]f the defendant were required to

wait until final judgment to appeal the denial of a meritorious

anti-SLAPP motion, a decision by this court reversing the

district court’s denial of the motion would not remedy the

fact that the defendant had been compelled to defend against

a meritless claim brought to chill rights of free expression.”

Id. To that end, we found it “instructive” that California’s

anti-SLAPP statute expressly provides that an order denying

an anti-SLAPP motion may be appealed immediately in

10 GOPHER MEDIA LLC V. MELONE

California state court. Id. A decade later, in DC Comics v.

Pacific Pictures Corp., 706 F.3d 1009 (9th Cir. 2013), we

reaffirmed Batzel, holding that the Supreme Court’s

intervening decision in Mohawk Industries, Inc. v.

Carpenter, 558 U.S. 100 (2009), did not disturb our earlier

decision.

Since that time, several members of our court have called

for reconsideration of Batzel due to an enduring

disagreement about whether the denial of an anti-SLAPP

motion meets the collateral order doctrine’s stringent

requirements. See, e.g., Planned Parenthood Fed’n of Am.,

Inc. v. Ctr. for Med. Progress, 890 F.3d 828, 835–38 (9th

Cir. 2018) (Gould, J., concurring); Travelers Cas. Ins. Co. of

Am. v. Hirsh, 831 F.3d 1179, 1182–86 (9th Cir. 2016)

(Kozinski, J., concurring); Makaeff v. Trump Univ., LLC,

736 F.3d 1180, 1188–92 (9th Cir. 2013) (Watford, J.,

dissenting from the denial of rehearing en banc); Martinez v.

ZoomInfo Techs., Inc., 82 F.4th 785, 794, 796–97 (9th

Cir. 2023) (McKeown, J., concurring, and Desai, J.,

concurring), vacated, 90 F.4th 1042 (9th Cir. 2024) (mem.).

In addition, other circuits have held that the denial of an anti-

SLAPP motion does not satisfy the collateral order doctrine.

E.g., Ernst v. Carrigan, 814 F.3d 116, 119 & n.1

(2d Cir. 2016) (discussing Vermont’s anti-SLAPP statute);

Coomer v. Make Your Life Epic LLC, 98 F.4th 1320, 1328–

29 (10th Cir. 2024) (discussing Colorado’s anti-SLAPP

statute). We have noted these developments and now hold

that orders denying anti-SLAPP motions under California’s

GOPHER MEDIA LLC V. MELONE 11

statute are not immediately appealable under the collateral

order doctrine. 3

III

A

To begin, orders denying anti-SLAPP motions under

California’s statute do not resolve questions “completely

separate from the merits.” Will, 546 U.S. at 349 (quotation

marks omitted). In Batzel, we held that a ruling under

California’s anti-SLAPP statute involves a question

completely separate from the merits because “it merely finds

that such merits may exist, without evaluating whether the

plaintiff’s claim will succeed.” 333 F.3d at 1025. But our

experience with anti-SLAPP cases over the ensuing two

decades has shown that the questions that must be answered

to resolve an anti-SLAPP motion are in fact “inextricably

intertwined with the merits of the litigation.” Planned

Parenthood, 890 F.3d at 836 (Gould, J., concurring).

California’s anti-SLAPP statute requires a two-step

analysis. At the first step, a court must decide whether a

plaintiff’s claim arises from any act “in furtherance of the

person’s right of petition or free speech,” Cal. Civ. Proc.

Code § 425.16(b)(1), which necessarily involves reviewing

the “content” and “context” of the factual allegations in a

plaintiff’s complaint. FilmOn.com Inc., 439 P.3d at 1160,

1165. At the second step, a court must decide whether “the

plaintiff has established that there is a probability that the

plaintiff will prevail on the claim.” Cal. Civ. Proc. Code

§ 425.16(b)(1). These questions are not “neat abstract issues

3

To be sure, nothing in our holding abrogates a district court’s ability to

certify a question for immediate interlocutory appeal pursuant to 28

U.S.C. § 1292(b).

12 GOPHER MEDIA LLC V. MELONE

of law” that can be decided once and will not reemerge at

trial. Johnson, 515 U.S. at 317 (citation omitted); Coomer,

98 F.4th at 1328 (“[A] principal purpose of the separability

requirement[] [is] preventing piecemeal appellate review.”);

cf. Mitchell v. Forsyth, 472 U.S. 511, 527–28 (1985)

(explaining that a question of law satisfies the “conceptually

distinct” requirement under the collateral order doctrine

because a court “need not consider the correctness of the

plaintiff’s version of the facts, nor even determine whether

the plaintiff’s allegations actually state a claim”). Instead,

the anti-SLAPP analysis intertwines factual and legal

questions, which requires a court to go beyond “merely

find[ing] that such merits may exist.” Batzel, 333 F.3d at

1025. Even purely legal issues bearing on whether there “is

a probability that the plaintiff will prevail on the claim,” Cal.

Civ. Proc. Code § 425.16(b)(1), are likely to reemerge at

later procedural stages, which would unnecessarily create

the need for “piecemeal appellate review.” Coomer, 98 F.4th

at 1328. Therefore, “[g]iven the fact-dependent nature of the

anti-SLAPP analysis,” the denial of an anti-SLAPP motion

is not “conceptually distinct” from the merits of a plaintiff’s

claims. Coomer, 98 F.4th at 1326, 28 (citing Johnson, 515

U.S. at 314).

B

Additionally, orders denying California anti-SLAPP

motions are not “effectively unreviewable on appeal from a

final judgment.” Will, 546 U.S. at 349 (quoting Metcalf &

Eddy, 506 U.S. at 144). The Supreme Court has “routinely

require[d] litigants to wait until after final judgment to

vindicate valuable rights, including rights central to our

adversarial system.” Mohawk Indus., Inc., 558 U.S. at 108–

09. Although we still recognize that some important interest

may be lost if a defendant must wait to appeal a final

GOPHER MEDIA LLC V. MELONE 13

judgment in an anti-SLAPP case—such as the potential

unfairness of having to defend a meritless action all the way

through trial—this lost interest does not render the decision

“effectively unreviewable” for purposes of the collateral

order doctrine because deferring review of these motions

until final judgment will not “so imperil[] the interest as to

justify the cost of allowing immediate appeal of the entire

class of relevant orders.” 4 Id. at 108. Indeed, our court has

already reached this conclusion about orders granting an

anti-SLAPP motion under California’s statute. Hyan v.

Hummer, 825 F.3d 1043, 1046–47 (9th Cir. 2016) (per

curiam) (holding that the district court’s order granting an

anti-SLAPP motion against two out of three defendants was

not immediately appealable under the collateral order

doctrine because an erroneous grant of an anti-SLAPP

motion is “fully reviewable” and “can be fully remedied on

appeal”). Thus, our holding in this case unifies the approach

we use for anti-SLAPP motions under the California statute;

whether the motion is granted or denied, a party may not take

an interlocutory appeal as of right from that decision under

the collateral order doctrine. See Mohawk Indus., Inc., 558

U.S. at 107.

4

One way the California Legislature sought to protect the interest of

having to defend a meritless action is through the right to recover

attorneys’ fees, and our decision today does not affect that protection.

FilmOn.com Inc., 439 P.3d at 1161 (“[T]he Legislature shifted . . . fees

onto the lawsuit filer to compensate the prevailing defendant for the

undue burden of defending against litigation designed to chill the

exercise of free speech and petition rights.” (citation modified)). If a

defendant successfully challenges the denial of an anti-SLAPP motion

on appeal after a final judgment, then the defendant is entitled to obtain

the attorneys’ fees required to defend against the SLAPP-related appeal.

Cal. Civ. Proc. Code § 425.16(c)(1).

14 GOPHER MEDIA LLC V. MELONE

Moreover, the California anti-SLAPP statute’s provision

allowing for an interlocutory appeal of denials of anti-

SLAPP motions in state court does not alter our conclusion

on this issue. In Batzel, we found it “instructive” that

California’s anti-SLAPP statute expressly provides for an

immediate interlocutory appeal upon denial of an anti-

SLAPP motion in California state court because it

“demonstrates that California lawmakers wanted to protect

speakers from the trial itself rather than merely from

liability.” 333 F.3d at 1025. We characterized California’s

anti-SLAPP statute “in the nature of immunity” and

reasoned that the denial of an anti-SLAPP motion should be

immediately appealable for the same reasons that a denial of

an immunity defense is. Id. However, since Batzel,

California has discussed anti-SLAPP protection in a way that

casts doubt on our analogy between anti-SLAPP protection

and immunity defenses. See Ernst, 814 F.3d at 121 (“While

anti-SLAPP statutes have much in common with immunity

statutes, the California courts have ruled that the California

statute . . . does not provide . . . ‘a substantive immunity from

suit.’” (quoting Liberty Synergistic Inc. v. Microflo Ltd., 718

F.3d 138, 148 n.9 (2d. Cir. 2013) (discussing Jarrow

Formulas, Inc. v. LaMarche, 74 P.3d 737 (Cal. 2003)). Even

if that analogy were correct, the Supreme Court has ruled

that not every district court decision denying immunity is

entitled to an interlocutory appeal under the collateral order

doctrine—if there are fact-based issues entangled in the

immunity determination, then the decision does not satisfy

the collateral order doctrine’s requirements. See Johnson,

515 U.S. at 307. It remains that the collateral order doctrine

does not extend to denials of anti-SLAPP motions under the

California statute because “[e]ffective appellate review can

GOPHER MEDIA LLC V. MELONE 15

be had by other means.” Mohawk Indus., Inc., 558 U.S. at

114.

IV

For the foregoing reasons, we overrule Batzel’s holding,

but we confine our en banc consideration to orders denying

motions to strike under California’s anti-SLAPP statute. We

do not address the application of the collateral order doctrine

to other states’ anti-SLAPP statutes because those statutes

are not currently before us.

APPEAL DISMISSED AND CASE REMANDED.

Each side shall bear their own costs.

BENNETT, Circuit Judge, joined by CALLAHAN, Circuit

Judge, concurring:

I join the majority opinion in full. But I write separately

because I believe that California’s anti-SLAPP 1

special-motion and attorney-fee-shifting provisions, Cal.

Civ. Proc. Code § 425.16(b)(1), (c)(1) (together, the

“anti-SLAPP provisions”), create a substantive right. 2 In

substance, these provisions provide defendants with a

pretrial claim for attorneys’ fees for plaintiffs’ abuse of the

judicial process by filing a meritless SLAPP suit. No federal

rule controls or directly collides with that right. Thus, the

anti-SLAPP provisions apply in federal court under Erie

1

A “SLAPP” is a “strategic lawsuit against public participation.”

Ketchum v. Moses, 17 P.3d 735, 738 (Cal. 2001).

2

My concurrence addresses only the special-motion and

attorney-fee-shifting provisions under Cal. Civ. Proc. Code

§ 425.16(b)(1), (c)(1).

16 GOPHER MEDIA LLC V. MELONE

Railroad Co. v. Tompkins, 304 U.S. 64 (1938), and its

progeny.

I

“The [California] Legislature enacted [the anti-SLAPP

statute] to prevent and deter ‘[SLAPP] lawsuits brought

primarily to chill the valid exercise of the constitutional

rights of freedom of speech and petition for the redress of

grievances.’” Varian Med. Sys., Inc. v. Delfino, 106 P.3d

958, 966 (Cal. 2005) (alteration omitted) (quoting Cal. Civ.

Proc. Code § 425.16(a)). “The hallmark of a SLAPP suit is

that it lacks merit” and is instead brought for the purpose of

“obtaining an economic advantage over a citizen party by

increasing the cost of litigation to the point that the citizen

party’s case will be weakened or abandoned, and of deterring

future litigation.” United States ex rel. Newsham v.

Lockheed Missiles & Space Co., 190 F.3d 963, 970–71 (9th

Cir. 1999). The California Legislature determined that a

SLAPP suit is an “abuse of the judicial process.” Cal. Civ.

Proc. Code § 425.16(a). But “[b]ecause winning is not a

SLAPP plaintiff’s primary motivation, defendants’

traditional safeguards against meritless actions, (suits for

malicious prosecution and abuse of process, requests for

sanctions) are inadequate to counter SLAPPs.” Wilcox v.

Superior Ct., 33 Cal. Rptr. 2d 446, 450 (Ct. App. 1994),

disapproved of on other grounds by Equilon Enters. v.

Consumer Cause, Inc., 52 P.3d 685 (Cal. 2002). “By the

time a SLAPP victim can win a ‘SLAPP-back’ suit years

later the SLAPP plaintiff will probably already have

accomplished its underlying objective.” Id.

To remedy that problem, the California Legislature

enacted the anti-SLAPP statute, which includes the

special-motion and attorney-fee-shifting provisions. Cal.

GOPHER MEDIA LLC V. MELONE 17

Civ. Proc. Code § 425.16(b)(1), (c)(1). The special-motion

provision allows a court to strike any cause of action that

“aris[es] from any act of [the defendant] in furtherance of the

[defendant]’s right of petition or free speech under the

United States Constitution or the California Constitution in

connection with a public issue,” “unless the court determines

that the plaintiff has established that there is a probability

that the plaintiff will prevail on the claim.” 3 Id.

§ 425.16(b)(1).

If successful, with some exceptions, the “prevailing

defendant on a special motion to strike shall be entitled to

recover [his or her] attorney’s fees.” Id. § 425.16(c)(1). The

fee-shifting provision “discourage[s] [SLAPPs] by imposing

the litigation costs on the party seeking to ‘chill the valid

exercise of the constitutional rights of freedom of speech and

petition for the redress of grievances.’” Ketchum, 17 P.3d at

741 (quoting Cal. Civ. Proc. Code § 425.16(a)). “The

fee-shifting provision also encourages private representation

in SLAPP cases, including situations when a SLAPP

defendant is unable to afford fees or the lack of potential

monetary damages precludes a standard contingency fee

arrangement.” Id. Together, these anti-SLAPP provisions

promote California’s goals of deterring SLAPPs, Varian

Med. Sys., 106 P.3d at 966, and “compensating the prevailing

defendant for the undue burden of defending against

3

As discussed below, in Planned Parenthood Federation of America,

Inc. v. Center for Medical Progress, we reconciled the special-motion

provision with Federal Rules of Civil Procedure 12 and 56 by holding

that the Rule 12(b)(6) standard applies “when an anti-SLAPP motion to

strike challenges only the legal sufficiency of a claim,” and the Rule 56

standard applies “when an anti-SLAPP motion to strike challenges the

factual sufficiency of a claim.” 890 F.3d 828, 834 (9th Cir.), amended

by 897 F.3d 1224 (9th Cir. 2018).

18 GOPHER MEDIA LLC V. MELONE

litigation designed to chill the exercise of free speech and

petition rights,” Barry v. State Bar of Cal., 386 P.3d 788, 794

(Cal. 2017).

II

A

To determine whether the anti-SLAPP provisions may be

properly applied in federal court, we must first ask whether

a federal rule “answers the question in dispute.” Shady

Grove Orthopedic Assocs., P.A. v. Allstate Ins., 559 U.S. 393,

398 (2010). The federal rule must be “‘sufficiently broad’ to

cause a ‘direct collision’ with the state law or, implicitly, to

‘control the issue’ before the court, thereby leaving no room

for the operation of that law.” Burlington N. R.R. Co. v.

Woods, 480 U.S. 1, 4–5 (1987) (quoting Walker v. Armco

Steel Corp., 446 U.S. 740, 749, 750 n.9 (1980)). If such a

federal rule exists, it “controls ‘unless it exceeds statutory

authorization or Congress’s rulemaking power.’” Ellis v.

Salt River Project Agric. Improvement & Power Dist., 24

F.4th 1262, 1269 (9th Cir. 2022) (quoting Shady Grove, 559

U.S. at 398).

But if no federal rule answers the question in dispute, we

“proceed to determine whether the state law applies in

federal court under the Erie doctrine.” Id. at 1270. “Under

the Erie doctrine, federal courts sitting in diversity apply

state substantive law and federal procedural law.” Gasperini

v. Ctr. for Humans., Inc., 518 U.S. 415, 427 (1996). “A

substantive rule is one that creates rights or obligations . . . .”

In re County of Orange, 784 F.3d 520, 527 (9th Cir. 2015).

“A procedural rule, by contrast, defines ‘a form and mode of

enforcing’ the substantive right or obligation.” Id. (quoting

Byrd v. Blue Ridge Rural Elec. Co-op., Inc., 356 U.S. 525,

536 (1958)). Ultimately, though, “the line between

GOPHER MEDIA LLC V. MELONE 19

substance and procedure must be drawn so as to ensure that

‘the outcome of the litigation in the federal court should be

substantially the same, so far as legal rules determine the

outcome of a litigation, as it would be if tried in a State

court.’” Ellis, 24 F.4th at 1270 (quoting Felder v. Casey, 487

U.S. 131, 151 (1988)). This “‘outcome-determination’ test

must not be applied mechanically.” Gasperini, 518 U.S. at

428. “[I]nstead, its application must be guided by ‘the twin

aims of the Erie rule: discouragement of forum-shopping

and avoidance of inequitable administration of the laws.’”

Id. (quoting Hanna v. Plumer, 380 U.S. 460, 468 (1965)).

B

As discussed above, the California Legislature views

SLAPP suits as an “abuse of the judicial process.” Cal. Civ.

Proc. Code § 425.16(a). To protect defendants from this

improper conduct, the California Legislature created a

meaningful remedy: a defendant may file a special motion to

strike and, if the defendant prevails, then the court shall

strike the claim and award defendant his attorneys’ fees. Cal.

Civ. Proc. Code § 425.16(b)(1), (c)(1). In substance, these

anti-SLAPP provisions provide defendants with a claim for

attorneys’ fees for the pretrial dismissal of a meritless

SLAPP suit.

Thus, the “question in dispute,” Shady Grove, 559 U.S.

at 398, is whether defendants may obtain attorneys’ fees for

the pretrial dismissal of a meritless suit. 4 No federal rule

4

Because this is the proper question, I find unpersuasive the

out-of-circuit cases that Judge Bress’s concurrence cites. Bress

Concurrence at 36. Those cases framed the question differently in

holding that various state anti-SLAPP statutes conflicted with a federal

rule. See La Liberte v. Reid, 966 F.3d 79, 87 (2d Cir. 2020) (identifying

the question as “the circumstances under which a court must dismiss a

20 GOPHER MEDIA LLC V. MELONE

answers that question. Judge Bress’s concurrence points to

Federal Rules of Civil Procedure 12 and 56. Bress

Concurrence at 33–34. But those rules do not control, as

they establish no entitlement to a claim for attorneys’ fees.

See Fed. R. Civ. P. 12, 56. For the same reason, Rules 12

and 56 do not conflict with the attorney-fee-shifting

provision.

Nor do Rules 12 and 56 directly collide with the

special-motion provision. In Planned Parenthood, we

inspected the standards to be applied under the

special-motion provision and Rules 12 and 56 and confirmed

that they could be reconciled. 5 890 F.3d at 833–34. There,

we held that “when an anti-SLAPP motion to strike

challenges only the legal sufficiency of a claim, a . . . court

should apply the Federal Rule of Civil Procedure 12(b)(6)

standard and consider whether a claim is properly stated.”

plaintiff’s claim before trial” (quoting Abbas v. Foreign Pol’y Grp., LLC,

783 F.3d 1328, 1333 (D.C. Cir. 2015))); Klocke v. Watson, 936 F.3d 240,

245 (5th Cir.), as revised (Aug. 29, 2019) (same); Carbone v. Cable

News Network, Inc., 910 F.3d 1345, 1350 (11th Cir. 2018) (identifying

the question as “whether [a] complaint states a claim for relief supported

by sufficient evidence to avoid pretrial dismissal”); Abbas, 783 F.3d at

1333–34 (identifying the question as “the circumstances under which a

court must dismiss a case before trial”).

5

The Supreme Court has directed that “if the federal and state rules ‘can

be reconciled,’ then they do not qualify as in conflict.” Hamilton v.

Wal-Mart Stores, Inc., 39 F.4th 575, 585 (9th Cir. 2022) (quoting Shady

Grove, 559 U.S. at 410 (plurality opinion)) (first citing Shady Grove, 559

U.S. at 421 (Stevens, J., concurring in part and concurring in the

judgment); and then citing Shady Grove, 559 U.S. at 437 (Ginsburg, J.,

dissenting)); see also Gasperini, 518 U.S. at 437 n.22 (“[The] Court ‘has

continued since [Hanna] to interpret the federal rules to avoid conflict

with important state regulatory policies’ . . . .” (quoting R. Fallon, D.

Meltzer, & D. Shapiro, Hart and Wechsler’s The Federal Courts and the

Federal System 729–30 (4th ed. 1996))).

GOPHER MEDIA LLC V. MELONE 21

Id. at 834. But “when an anti-SLAPP motion to strike

challenges the factual sufficiency of a claim, then the Federal

Rule of Civil Procedure 56 standard will apply.” Id. Thus,

there is no direct collision between California’s anti-SLAPP

provisions and Rules 12 and 56. See CoreCivic, Inc. v.

Candide Grp., LLC, 46 F.4th 1136, 1143 (9th Cir. 2022)

(explaining that, under Planned Parenthood, no “conflict

exists in this Circuit” between California’s anti-SLAPP

special-motion provision and the standards under Rules 12

and 56).

C

Because no federal rule controls or directly conflicts with

the anti-SLAPP provisions, “we must make the ‘typical,

relatively unguided Erie choice.’” Newsham, 190 F.3d at

973 (quoting Hanna, 380 U.S. at 471). The anti-SLAPP

provisions provide defendants with a pretrial claim for

attorneys’ fees for plaintiffs’ abuse of the judicial process.

This is a substantive rule. See Alaska Rent-A-Car, Inc. v. Avis

Budget Grp., Inc., 738 F.3d 960, 973 (9th Cir. 2013) (“The

Supreme Court held in Alyeska Pipeline Service Co. v.

Wilderness Society that for Erie Railroad Co. v. Tompkins

purposes, state law on attorney’s fees is substantive, so state

law applies in diversity cases.” (footnotes omitted)). The

anti-SLAPP provisions “create[] [a] right[] or obligation[].”

County of Orange, 784 F.3d at 527. They create a

defendant’s right to attorneys’ fees and a plaintiff’s

obligation to pay such fees. See Cohen v. Beneficial Indus.

Loan Corp., 337 U.S. 541, 555–56 (1949) (holding that a

state law that “create[d] a new liability where none existed

before” was substantive). The anti-SLAPP provisions also

“serve [California’s] substantive state polic[y],” County of

Orange, 784 F.3d at 530 (quoting Feldman v. Allstate

Ins., 322 F.3d 660, 667 (9th Cir. 2003)), of protecting “the

22 GOPHER MEDIA LLC V. MELONE

valid exercise of the constitutional rights of freedom of

speech and petition for the redress of grievances,” Cal. Civ.

Proc. Code § 425.16(a), by deterring SLAPPs and

compensating prevailing defendants, see Ketchum, 17 P.3d

at 741.

The Supreme Court has long held that state statutes

requiring an award of attorneys’ fees to further a substantial

policy apply in federal court:

[I]t is clear that it is the policy of the state to

allow plaintiffs to recover an attorney’s fee in

certain cases, and it has made that policy

effective by making the allowance of the fee

mandatory on its courts in those cases. It

would be at least anomalous if this policy

could be thwarted and the right so plainly

given destroyed by removal of the cause to

the federal courts.

Sioux County v. Nat’l Sur. Co., 276 U.S. 238, 243 (1928).

This holding survived Erie, as confirmed by the Supreme

Court in Alyeska Pipeline Service Co. v. Wilderness Society,

421 U.S. 240, 259 n.31 (1975), superseded by statute on

other grounds as stated in Lackey v. Stinnie, 604 U.S. 192,

205 (2025). Indeed, in Alyeska Pipeline, the Court reiterated

that in “an ordinary diversity case where the state law does

not run counter to a valid federal statute or rule of court, and

usually it will not, state law . . . giving a right [to attorneys’

fees], which reflects a substantial policy of the state, should

be followed.” Id. (quoting 6 J. Moore, Federal Practice

§ 54.77(2), at 1712–13 (2d ed. 1974)). Because the

anti-SLAPP provisions grant defendants a right to attorneys’

fees to further an important state policy, Supreme Court

GOPHER MEDIA LLC V. MELONE 23

precedent compels us to conclude that the anti-SLAPP

provisions are substantive under Erie. 6

Erie’s “twin aims”—“discouragement of

forum-shopping and avoidance of inequitable administration

of the laws”—confirm that the anti-SLAPP provisions are

substantive. Hanna, 380 U.S. at 468. “Plainly, if the

anti-SLAPP provisions are held not to apply in federal court,

a litigant interested in bringing meritless SLAPP claims

would have a significant incentive to shop for a federal

forum.” Newsham, 190 F.3d at 973. “[W]ere [the

anti-SLAPP provisions] not to apply in federal court, the

incentives for forum shopping would be strong: electing to

bring state-law claims in federal as opposed to state court

would allow a plaintiff to . . . circumvent any liability for a

defendant’s attorney’s fees or costs.” Godin v. Schencks, 629

F.3d 79, 92 (1st Cir. 2010). “Conversely, a litigant otherwise

entitled to the protections of the Anti-SLAPP statute would

find considerable disadvantage in a federal proceeding.”

Newsham, 190 F.3d at 973. As we correctly noted in

6

For this reason, I respectfully disagree with Judge Bress’s suggestion

that the anti-SLAPP provisions merely “adopt[] a set of procedures.”

Bress Concurrence at 45. Judge Bress also argues that, even assuming

the fee-shifting provision is substantive, it would be “wholly improper

to apply [the] attorneys’ fees provision” because “[t]here is, in effect, no

underlying statute to which the attorneys’ fee provision could even

apply.” Bress Concurrence at 40. But, as explained above, we have

reconciled the special-motion provision with the federal rules, and thus

it continues to apply. Further, contrary to Judge Bress’s suggestion, the

Eleventh Circuit in Carbone did not reject the notion that fee-shifting

provisions under an anti-SLAPP statute that further an important state

policy are substantive. Bress Concurrence at 47. Indeed, in rejecting

that the statute there was substantive, the Carbone court did not even

consider whether the fee-shifting provision could be viewed as

substantive. See Carbone, 910 F.3d at 1355.

24 GOPHER MEDIA LLC V. MELONE

Newsham, “[t]his outcome . . . run[s] squarely against the

‘twin aims’ of the Erie doctrine.” Id.; see also Makaeff v.

Trump Univ., LLC, 736 F.3d 1180, 1187 (9th Cir. 2013)

(order) (Wardlaw and Callahan, JJ., joined by Fletcher and

Gould, JJ., concurring in the denial of rehearing en banc)

(“Without anti-SLAPP protections in federal courts, SLAPP

plaintiffs would have an incentive to file or remove to federal

courts strategic, retaliatory lawsuits that are more likely to

have the desired effect of suppressing a SLAPP defendant’s

speech-related activities.”). 7

III

California’s anti-SLAPP special-motion and

attorney-fee-shifting provisions, Cal. Civ. Proc. Code

§ 425.16(b)(1), (c)(1), provide defendants with a pretrial

claim for attorneys’ fees for plaintiffs’ abuse of the judicial

process. That is a substantive right, and no federal rule

controls or directly collides with that right. Thus, the

anti-SLAPP provisions apply in federal court.

7

I find unpersuasive the Tenth Circuit’s decision in Los Lobos

Renewable Power, LLC v. Americulture, Inc, 885 F.3d 659 (10th Cir.

2018), in which it held that New Mexico’s anti-SLAPP statute is

procedural and not substantive. First, in determining that the fee-shifting

provision was procedural, id. at 668–73, the court did not consider the

Supreme Court’s longstanding precedent that state statutes requiring an

award of attorneys’ fees to further a substantial policy should be applied

in federal court, see Sioux County, 276 U.S. at 243; Alyeska Pipeline,

421 U.S. at 259 n.31. Second, the Los Lobos court’s cursory discussion

of Erie’s twin aims fails to acknowledge the strong incentive to forum

shop if the fee-shifting provision were not to apply in federal court. See

Los Lobos, 885 F.3d at 673 n.8.

GOPHER MEDIA LLC V. MELONE 25

BRESS, Circuit Judge, with whom COLLINS, LEE, and

BUMATAY, Circuit Judges, join, concurring in the

judgment:

For over twenty-five years, the Ninth Circuit has

struggled with its misguided experiment of allowing

California’s anti-SLAPP statute to apply in federal court.

Almost as soon as we allowed these motions to be filed in

federal litigation, we were forced to alter the state’s anti-

SLAPP procedures in various ways to avoid conflicts with

the Federal Rules of Civil Procedure. Over the years,

numerous judges of this court have implored us to reevaluate

the broader issue, forcefully explaining why California’s

anti-SLAPP statute should have no place in federal court.

Picking up on those criticisms, virtually every other circuit

to consider the issue has come out against us.

The time was therefore ripe—beyond ripe—for bringing

our circuit in line with the overwhelming majority view and

holding that California’s anti-SLAPP statute is a state

procedural device that does not apply in federal court.

Today’s decision unfortunately ducks that issue. In

concluding that the denial of an anti-SLAPP motion is not

immediately appealable under the collateral order doctrine,

the majority opinion instead continues our multi-decade

project of surgically altering the core components of the anti-

SLAPP law to make it compatible with federal procedural

law. But in the process, the majority allows to prevail in

federal court a version of the anti-SLAPP statute that looks

even less like the original than the already contorted version

we have spent years jerry-rigging.

The issue of whether the anti-SLAPP statute applies in

federal court is not going away. And we have no license for

allowing state procedural law to govern in federal court,

26 GOPHER MEDIA LLC V. MELONE

much less state procedural law that looks nothing like the

law the state enacted. Rather than wait for the next case, it

would have been far better, after a quarter-century of

confusion, to deal with this issue once and for all. We have

no jurisdiction to resolve this appeal of the denial of an anti-

SLAPP motion for the more fundamental reason that

California’s anti-SLAPP statute does not apply in federal

court.

I

A

Like many other states, California has an anti-SLAPP

statute. See Cal. Civ. Proc. Code §§ 425.16–17. SLAPP

stands for “strategic lawsuit against public participation.”

The idea behind anti-SLAPP laws is to “protect against

‘lawsuits brought primarily to chill’ the exercise of speech

and petition rights” and to “‘encourage continued

participation in matters of public significance.’”

FilmOn.com Inc. v. DoubleVerify Inc., 439 P.3d 1156, 1160

(Cal. 2019) (quoting Cal. Civ. Proc. Code § 425.16(a)).

To combat such litigation, California allows defendants

to file anti-SLAPP motions. See Cal. Civ. Proc. Code

§ 425.16. California’s anti-SLAPP motion is “a special

motion to strike” a cause of action “arising from any act of

that person in furtherance of the person’s right of petition or

free speech under the United States Constitution or the

California Constitution in connection with a public issue.”

Id. § 425.16(b)(1); see generally Metabolife Int’l, Inc. v.

Wornick, 264 F.3d 832, 839–40 (9th Cir. 2001) (outlining the

mechanics of an anti-SLAPP motion). There are also

exceptions to the anti-SLAPP law. See, e.g., Cal. Civ. Proc.

Code § 425.17(b) (anti-SLAPP law generally does not apply

GOPHER MEDIA LLC V. MELONE 27

to “any action brought solely in the public interest or on

behalf of the general public”).

Under the anti-SLAPP statute, if a defendant makes a

prima facie showing that the plaintiff’s lawsuit arises from

the defendant’s exercise of his right to free speech, the

defendant may bring an anti-SLAPP motion. Cal. Civ. Proc.

Code § 425.16(b)(1); Makaeff v. Trump Univ., LLC, 715

F.3d 254, 261 (9th Cir. 2013). At that point, the burden shifts

to the plaintiff to “establish[ ] that there is a probability that

the plaintiff will prevail on the claim.” Cal. Civ. Proc. Code

§ 425.16(b)(1); see also Makaeff v. Trump Univ., LLC, 736

F.3d 1180, 1188–89 (9th Cir. 2013) (Watford, J., joined by

Kozinski, C.J., and Paez and Bea, JJ., dissenting from the

denial of rehearing en banc).

In addition to its heightened “probability” standard,

California’s anti-SLAPP law includes various other

procedures “‘for weeding out, at an early stage, meritless

claims arising from protected activity.’” Newport Harbor

Ventures, LLC v. Morris Cerullo World Evangelism, 413

P.3d 650, 653 (Cal. 2018) (quoting Baral v. Schnitt, 376 P.3d

604, 608 (Cal. 2016) (emphasis omitted)). For example, “the

filing of an anti-SLAPP motion automatically stays all

further discovery until the court rules on the motion.”

Metabolife, 264 F.3d at 846 (citing Cal. Civ. Proc. Code

§ 425.16(g)). In addition, the statute permits immediate

appeals of orders granting or denying anti-SLAPP motions.

Newport Harbor, 413 P.3d at 655 (citing Cal. Civ. Proc.

Code § 425.16(i)). The statute also provides that “a

defendant that prevails on a special motion to strike is

entitled to attorney’s fees and costs.” Barry v. State Bar of

Cal., 386 P.3d 788, 790 (Cal. 2017) (citing Cal. Civ. Proc.

Code § 425.16(c)(1)). These and other features of the law

“provide a mechanism for the early termination of claims

28 GOPHER MEDIA LLC V. MELONE

that are improperly aimed at the exercise of free speech or

the right of petition.” Newport Harbor, 413 P.3d at 653

(quoting Lam v. Ngo, 111 Cal. Rptr. 2d 582, 589 (Cal. Ct.

App. 2001)).

Several years after California enacted its anti-SLAPP

statute, we held that the anti-SLAPP law applied in federal

court. See United States ex rel. Newsham v. Lockheed

Missiles & Space Co., 190 F.3d 963, 970–73 (9th Cir. 1999).

We concluded that there was “no ‘direct collision’” between

Federal Rules of Civil Procedure 12 and 56 and California’s

anti-SLAPP device, even though the latter “adds an

additional, unique weapon to the pretrial arsenal.” Id. at

972–73. And we reasoned that the purposes of the Erie

doctrine, see Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938),

supported applying the state anti-SLAPP law in federal

court. Otherwise, “a litigant interested in bringing meritless

SLAPP claims would have a significant incentive to shop for

a federal forum.” Newsham, 190 F.3d at 973. We did not

grapple with how the anti-SLAPP statute’s “probability”

standard deviates from the Rule 12(b)(6) and Rule 56

standards.

Several years later, we took the next step and held that

the denial of an anti-SLAPP motion is immediately

appealable in federal court. See Batzel v. Smith, 333 F.3d

1018, 1024–26 (9th Cir. 2003). While the anti-SLAPP

statute permits interlocutory appeals, see Cal. Civ. Proc.

Code § 425.16(i), in federal court, a party is generally

“entitled only to a single appeal, to be ‘deferred until final

judgment has been entered.’” Batzel, 333 F.3d at 1024

(quoting Digit. Equip. Corp. v. Desktop Direct, Inc., 511

U.S. 863, 868 (1994)). Still, aligning our law with

California’s procedural law, Batzel held that “we have

GOPHER MEDIA LLC V. MELONE 29

jurisdiction to review the denial of an anti-SLAPP motion

pursuant to the collateral order doctrine.” Id.

The result of these precedents is the widespread use of

the anti-SLAPP mechanism in federal courts in this circuit.

See Travelers Cas. Ins. Co. of Am. v. Hirsh, 831 F.3d 1179,

1182–83 (9th Cir. 2016) (Kozinski, J., joined by Gould, J.,

concurring). Experience shows that it is standard practice

for parties litigating in our district courts to include an anti-

SLAPP motion as part of the standard suite of dispositive

pre-trial motions.

B

But a major problem lurked. Federal courts do not apply

state laws or rules if the Federal Rules of Civil Procedure

“attempt[ ] to answer the same question” and the relevant

Federal Rule does not violate the Rules Enabling Act. Shady

Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S.

393, 398–99 (2010); see also Hanna v. Plumer, 380 U.S.

460, 463–64, 471 (1965). Thus, “[w]hen a situation is

covered by one of the Federal Rules,” we apply that rule over

a corresponding state rule, unless the Federal Rule is invalid.

Hanna, 380 U.S. at 471. In that situation, “[w]e do not wade

into Erie’s murky waters unless the federal rule is

inapplicable or invalid.” Shady Grove, 559 U.S. at 398

(citing Hanna, 380 U.S. at 469–71).

Almost as soon as we held that California’s anti-SLAPP

statute could apply in federal court, we were forced to

conclude that various aspects of the anti-SLAPP statute

could not, in fact, apply in federal court after all. The last

twenty-five years of case law in this area from the Ninth

Circuit—including today’s decision—has therefore

revolved around a central project: steadily holding that

critical features of California’s anti-SLAPP statute do not

30 GOPHER MEDIA LLC V. MELONE

govern in federal court. Everything since Newsham has

amounted to a retreat from that precedent.

Our decision in Metabolife Int’l, Inc. v. Wornick, 264

F.3d 832 (9th Cir. 2001), was the opening blow. There, we

held that the anti-SLAPP statute’s automatic stay of

discovery, see Cal. Civ. Proc. Code § 425.16(g), conflicts

with Rule 56 because while the anti-SLAPP statute “limits

discovery and makes further discovery an exception,” Rule

56 “ensures that adequate discovery will occur before

summary judgment is considered.” Metabolife, 264 F.3d at

846 (quotations omitted). Thus, the “discovery-limiting

aspects” of California’s anti-SLAPP statute do not apply in

federal court. Id. (quotations omitted).

As Chief Judge Kozinski explained, Metabolife’s

holding was “clearly correct,” but it “crippled the anti-

SLAPP statute” by subjecting defendants to the usual rigors

of federal court discovery, contrary to the statute’s objective

of halting—early on and with minimal expense—those

claims that have no “reasonable probability” of success.

Makaeff, 715 F.3d at 274 (Kozinski, C.J., joined by Paez, J.,

concurring). From almost the very beginning of our anti-

SLAPP case law, we were already constructing a version of

the anti-SLAPP motion that was a “far different (and tamer)

animal than its state-court cousin.” Id. at 275. But although

“Metabolife diminished some of the tension between the

state and federal schemes,” it did so “at the expense of

depriving the state scheme of its key feature: giving

defendants a quick and painless exit from the litigation.” Id.;

see also Makaeff, 736 F.3d at 1189 (Watford, J., dissenting

from the denial of rehearing en banc).

As the years wore on, we discovered more areas of

incompatibility between the anti-SLAPP statute and federal

GOPHER MEDIA LLC V. MELONE 31

procedure, requiring us to make even more adjustments to

the statute. For example, we concluded that “granting a

defendant’s anti-SLAPP motion to strike a plaintiff’s initial

complaint without granting the plaintiff leave to amend

would directly collide with Fed. R. Civ. P. 15(a)’s policy

favoring liberal amendment.” Verizon Del., Inc. v. Covad

Commc’ns Co., 377 F.3d 1081, 1091 (9th Cir. 2004).

Similarly, the anti-SLAPP statute requires that anti-SLAPP

motions generally be filed within 60 days of the service of

the complaint or counterclaims. Cal. Civ. Proc. Code

§ 425.16(f). But we held that this timing rule “directly

collide[s] with the more permissive” timing rule under Rule

56. See Sarver v. Chartier, 813 F.3d 891, 900 (9th Cir.

2016). As a result, for anti-SLAPP motions that sound in

Rule 56, we allow the filing of the motion “at any time until

30 days after the close of all discovery.” Id. (quoting Fed.

R. Civ. P. 56(b)). Litigants in federal court can thus bring

anti-SLAPP motions much later in litigation, following

discovery that the anti-SLAPP statute would generally not

permit in the first place.

We had to adjust the rules for interlocutory appeals, too.

After initially holding that the denial of an anti-SLAPP

motion is immediately appealable on a collateral basis, see

Batzel, 333 F.3d at 1024, we were then required to conclude

that, as a result of Federal Rule of Civil Procedure 54(b), a

plaintiff cannot appeal the grant of such a motion as to some

but not all defendants, even though such an order would be

immediately appealable in California state court. See Hyan

v. Hummer, 825 F.3d 1043, 1047 (9th Cir. 2016) (per

curiam) (citing Cal. Civ. Proc. Code § 425.16(i)). Once

again, we “pulled another tooth” from the anti-SLAPP

statute to harmonize it with federal procedural law.

32 GOPHER MEDIA LLC V. MELONE

Travelers Cas. Ins. Co., 831 F.3d at 1186 (Kozinski, J.,

joined by Gould, J., concurring).

C

As our hybrid version of California’s anti-SLAPP statute

became increasingly bespoke, many of our colleagues issued

or joined separate writings calling for the reversal of our

precedents allowing state-law anti-SLAPP motions in

federal court. And numerous other circuits broke with our

approach.

Writing in 2013, Chief Judge Kozinski, joined by Judge

Paez, described Newsham as “a big mistake,” explaining that

“[f]ederal courts have no business applying exotic state

procedural rules which, of necessity, disrupt the

comprehensive scheme embodied in the Federal Rules, our

jurisdictional statutes and Supreme Court interpretations

thereof.” Makaeff, 715 F.3d at 275 (Kozinski, C.J., joined

by Paez, J., concurring). California’s anti-SLAPP statute

“creates no substantive rights” and “merely provides a

procedural mechanism for vindicating existing rights.” Id.

at 273. But as Chief Judge Kozinski wrote, the Federal

Rules of Civil Procedure already “provide an integrated

program of pre-trial, trial and post-trial procedures designed

to ensure ‘the just, speedy, and inexpensive determination of

every action and proceeding.’” Id. at 274 (quoting Fed. R.

Civ. P. 1). The anti-SLAPP statute “cuts an ugly gash

through this orderly process,” permitting the premature

dismissal of claims without discovery; “chang[ing] the

standard for surviving summary judgment by requiring a

plaintiff to show a ‘reasonable probability’ that he will

prevail, rather than merely a triable issue of fact”; and

allowing otherwise forbidden interlocutory appeals. Id.

GOPHER MEDIA LLC V. MELONE 33

But our efforts to smooth over the differences created

new problems. Once we concluded in Metabolife that the

discovery-limiting features of the anti-SLAPP statute could

not apply in federal court, Chief Judge Kozinski went on to

explain, what remained was “a hybrid procedure where

neither the Federal Rules nor the state anti-SLAPP statute

operate as designed.” Id. at 275. In a separate concurring

opinion in the same case, Judge Paez made similar points.

See id. (Paez, J., joined by Kozinski, C.J., concurring). He

too recognized that “California’s anti-SLAPP statute is

‘quintessentially procedural,’ and its application in federal

court has created a hybrid mess that now resembles neither

the Federal Rules nor the original state statute.” Id.

Later in 2013, an en banc vote to reassess the issue failed,

but not without attracting a powerful dissent by Judge

Watford who, joined by Chief Judge Kozinski, Judge Paez,

and Judge Bea, added to the growing movement against our

anti-SLAPP precedents. See Makaeff, 736 F.3d at 1188

(Watford, J., joined by Kozinski, C.J., and Paez and Bea, JJ.,

dissenting from the denial of rehearing en banc). Focusing

on the legal standards for ending a lawsuit before trial, Judge

Watford explained that California’s anti-SLAPP statute

conflicts with Rules 12 and 56, which collectively “establish

the exclusive criteria for testing the legal and factual

sufficiency of a claim in federal court.” Id. Under Shady

Grove, the anti-SLAPP statute therefore “impermissibly

supplements the Federal Rules’ criteria for pre-trial

dismissal of an action.” Id.

For instance, to survive dismissal under Rule 12(b)(6), a

plaintiff need only “allege facts stating a claim that is

‘plausible on its face.’” Id. at 1188–89 (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). But as Judge

Watford observed, California’s anti-SLAPP statute

34 GOPHER MEDIA LLC V. MELONE

“impose[s] a probability requirement at the pleading stage”

that “effectively stiffens the Rule 12 standard for testing the

legal sufficiency of a claim.” Id. at 1189; see also id. (“Any

attempt to impose a probability requirement at the pleading

stage would obviously conflict with Rule 12. Yet that is

exactly what California’s anti-SLAPP statute does.”);

Travelers Cas. Ins. Co., 831 F.3d at 1183 (Kozinski, J.,

joined by Gould, J., concurring) (explaining that

“California’s anti-SLAPP law directly conflicts with Federal

Rule 12, which provides a one-size-fits-all test for evaluating

claims at the pleading stage”).

Judge Watford further explained how “[s]imilar

problems plague the interaction between California’s anti-

SLAPP statute and Rule 56.” Makaeff, 736 F.3d at 1189

(Watford, J., dissenting from the denial of rehearing en

banc). Summary judgment is proper only “if the movant

shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). But “[t]he anti-SLAPP statute

eviscerates Rule 56 by requiring the plaintiff to prove that

she will probably prevail if the case proceeds to trial—a

showing considerably more stringent than identifying

material factual disputes that a jury could reasonably resolve

in the plaintiff’s favor.” Makaeff, 736 F.3d at 1189

(Watford, J., dissenting from the denial of rehearing en

banc). For these reasons, Judge Watford called on us to

“revisit—and reverse—our precedent permitting application

of state anti-SLAPP statutes in federal court.” Id. at 1190.

Although the en banc call in Makaeff failed, Judge

Watford’s views were largely vindicated in Planned

Parenthood Federation of America, Inc. v. Center for

Medical Progress, 890 F.3d 828 (9th Cir. 2018), in a way

that only further cemented the strikingly different version of

GOPHER MEDIA LLC V. MELONE 35

California’s anti-SLAPP statute that we permit in federal

court. The anti-SLAPP statute’s heightened “probability”

requirement was a cornerstone of its protections for anti-

SLAPP defendants. But in Planned Parenthood, we

effectively expunged that “probability” standard “to prevent

the collision of California state procedural rules with federal

procedural rules.” Id. at 833. Instead, we held that

(1) “when an anti-SLAPP motion to strike challenges only

the legal sufficiency of a claim, a district court should apply

the Federal Rule of Civil Procedure 12(b)(6) standard and

consider whether a claim is properly stated,” and (2) “when

an anti-SLAPP motion to strike challenges the factual

sufficiency of a claim, then the Federal Rule of Civil

Procedure 56 standard will apply,” and, in such a case,

“discovery must be allowed.” Id. at 834. Echoing Chief

Judge Kozinski’s and Judge Watford’s separate writings,

Planned Parenthood explained that a “contrary reading of

these anti-SLAPP provisions would lead to the stark

collision of the state rules of procedure with the governing

Federal Rules of Civil Procedure while in a federal district

court.” Id.

As we continued to strip away various defining features

of the anti-SLAPP law when utilized in federal court,

members of this court continued to criticize our entire

project of allowing anti-SLAPP motions in federal litigation.

Writing in 2016, Judge Gould took “issue with circuit

precedent permitting defendants in federal court to take

advantage of California’s anti-SLAPP law,” opining that “an

anti-SLAPP motion has no proper place in federal court in

light of the Federal Rules of Civil Procedure.” Travelers

Cas. Ins. Co., 831 F.3d at 1186 (Gould, J.). More recently,

Judge McKeown similarly expressed concern with our case

law, because an anti-SLAPP motion “is wholly grounded in

36 GOPHER MEDIA LLC V. MELONE

th[e] state’s procedural law, yet we have infused it with

substantive significance.” Martinez v. ZoomInfo Techs.,

Inc., 82 F.4th 785, 794 (9th Cir. 2023) (McKeown, J.,

concurring), vacated, 90 F.4th 1042 (mem.) (9th Cir. 2024).

The other circuits, meanwhile, have by now come out

firmly against us. See id. at 795 (noting that “[o]ur

jurisprudence on anti-SLAPP statutes places us in the

minority among our sister circuits” because other circuits

“do not recognize the applicability of SLAPP statutes’

provisions for motions to strike or dismiss”); Planned

Parenthood, 890 F.3d at 836 (Gould, J., concurring)

(explaining that “the use of anti-SLAPP procedure in federal

courts has been squarely rejected” in other circuits). At this

time, and after considering similar anti-SLAPP laws in other

states, the Second, Fifth, Tenth, Eleventh, and D.C. Circuits

have all concluded that state anti-SLAPP statutes do not

apply in federal court. See Abbas v. Foreign Pol’y Grp.,

LLC, 783 F.3d 1328, 1333 (D.C. Cir. 2015) (op. of

Kavanaugh, J.); Los Lobos Renewable Power, LLC v.

Americulture, Inc., 885 F.3d 659, 673 (10th Cir. 2018);

Carbone v. Cable News Network, Inc., 910 F.3d 1345, 1347

(11th Cir. 2018); Klocke v. Watson, 936 F.3d 240, 242 (5th

Cir. 2019); La Liberte v. Reid, 966 F.3d 79, 87–88 (2d Cir.

2020).

Representative of these decisions is then-Judge

Kavanaugh’s opinion for the D.C. Circuit in Abbas. Relying

on the separate writings from Chief Judge Kozinski and

Judge Watford in Makaeff, Abbas held that the District of

Columbia’s anti-SLAPP statute did not apply in federal court

because under Shady Grove, “Federal Rules of Civil

Procedure 12 and 56 ‘answer the same question’ about the

circumstances under which a court must dismiss a case

before trial.” Abbas, 783 F.3d at 1333–34. The D.C. anti-

GOPHER MEDIA LLC V. MELONE 37

SLAPP statute could not apply in federal court because it

“conflict[ed] with the Federal Rules by setting up an

additional hurdle a plaintiff must jump over to get to trial.”

Id. at 1334; see also id. (citing the separate writings by Chief

Judge Kozinski and Judge Watford in Makaeff); Carbone,

910 F.3d at 1354 (holding that Georgia’s anti-SLAPP statute

cannot apply in federal court under Shady Grove because

“the Federal Rules and the Georgia anti-SLAPP statute

address the same question: whether a complaint states a valid

claim supported by sufficient evidence to warrant a trial on

the merits”); Klocke, 936 F.3d at 245 (holding that Texas’s

anti-SLAPP statute does not apply in federal court and

“find[ing] most persuasive the reasoning of the D.C. Circuit”

in Abbas); La Liberte, 966 F.3d at 87 (“Reid urges us to

follow the Ninth Circuit, which holds that California’s anti-

SLAPP statute and the Federal Rules ‘can exist side by side

. . . without conflict.’ We disagree—as do a number of Ninth

Circuit judges.” (quoting Newsham, 190 F.3d at 972)).

Although they have yet to carry the day in this court, the

separate writings of Chief Judge Kozinski and Judge

Watford have proven highly influential nationwide,

persuading the other circuits that have considered the issue.

Only the First Circuit agrees with us that a state anti-

SLAPP statute can apply in federal court. See Godin v.

Schencks, 629 F.3d 79, 92 (1st Cir. 2010). But it reached

that conclusion in 2010, back when we were the only circuit

to have weighed in on the issue and before various judges on

our court began to express disagreement with our precedent.

Our court, like the First Circuit, is thus an outlier. But given

our circuit’s vastly greater caseload, allowing anti-SLAPP

motions to be filed in our district courts has a profoundly

greater effect here.

38 GOPHER MEDIA LLC V. MELONE

II

A

This case presented a golden opportunity for the en banc

court to fix our mistaken precedent and hold that California’s

anti-SLAPP statute does not apply in federal court. There is

really nothing new to think about here. Chief Judge

Kozinski, Judge Watford, our sister circuits, and many

others have identified the clear path for holding that under

Shady Grove and Hanna v. Plumer, California’s anti-SLAPP

statute cannot apply in federal court, where the Federal Rules

of Civil Procedure reign. There is little I can do to improve

upon the sound reasoning of the many judges from this

circuit and elsewhere who have weighed in to explain this

point. In my respectful view, we do a disservice to the law

by keeping our patently incorrect anti-SLAPP case law on

the books, while leaving in place a lopsided circuit split in

which we spearhead the minority view.

In taking the minimalist approach of holding that the

denial of an anti-SLAPP motion is no longer immediately

appealable under the collateral order doctrine, the majority

opinion leaves anti-SLAPP practice in this circuit even more

incoherent than we found it. The four core pillars supporting

the anti-SLAPP statute’s overarching objective of

“resolv[ing] these lawsuits early,” Newport Harbor, 413

P.3d at 651, are (1) stays of discovery, (2) heightened

“probability” of success requirements for plaintiffs,

(3) interlocutory appeals, and (4) attorneys’ fees for

successful anti-SLAPP motions. Our decision in Metabolife

nixed the first. See 264 F.3d at 846. Planned Parenthood

eliminated the second. See 890 F.3d 833–34. Today’s

decision cancels the third. So we have now stripped away

every major procedural aspect of the statute geared toward

GOPHER MEDIA LLC V. MELONE 39

the early termination of claims. There may be other more

minor discrepancies that we have yet to resolve between

state anti-SLAPP procedure and the Federal Rules, but one

can be assured that if and when those issues arise, the Federal

Rules will prevail, just as they have in our past cases. So all

that really remains after today’s decision is the attorneys’

fees provision.

What the majority has therefore left us with is a fee-

shifting statute for anti-SLAPP motions that merit this label

in name only. They are really just motions to dismiss under

Rule 12(b)(6) or summary judgment motions under Rule 56.

They are subject to the same standards as those two types of

motions. See Planned Parenthood, 890 F.3d at 833–34.

They follow the same discovery processes as those motions,

just as the Federal Rules would normally allow. See

Metabolife, 264 F.3d at 846. These types of motions would

not have fee-shifting associated with them, absent an

attorneys’ fees provision in some other relevant substantive

state or federal law. But even though we have—out of

necessity to avoid conflict with federal procedural rules—

completely reformed the state anti-SLAPP legal standards,

the state anti-SLAPP discovery processes (or lack thereof),

and the state anti-SLAPP rules for interlocutory appeals,

after today’s decision, we will still award attorneys’ fees to

a successful anti-SLAPP movant.

There is no license for this. It is true that under the Erie

doctrine, federal courts sitting in diversity apply attorneys’

fees provisions that are part of substantive state law. See,

e.g., Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421

U.S. 240, 259 (1975), overruled by statute on other grounds,

as recognized in Lackey v. Stinnie, 604 U.S. 192, 205 (2025);

Alaska Rent-A-Car, Inc. v. Avis Budget Grp., 738 F.3d 960,

973 (9th Cir. 2013); In re Larry’s Apartment, L.L.C., 249

40 GOPHER MEDIA LLC V. MELONE

F.3d 832, 837–39 (9th Cir. 2001). But even assuming it

would be proper to regard the anti-SLAPP statute’s fee-

shifting provision as part of state substantive law, as opposed

to state procedural law, it is wholly improper to apply a state

attorneys’ fees provision to a state law that we have

completely rewritten. The attorneys’ fees provision in the

anti-SLAPP statute is part of an integrated statutory scheme.

There is simply no basis for allowing fee-shifting for a

revamped anti-SLAPP law that bears no resemblance to the

statute as enacted. There is, in effect, no underlying statute

to which the attorneys’ fee provision could even apply.

To this point, every other circuit to consider the issue has

held that when a state anti-SLAPP statute cannot apply in

federal court, its attorneys’ fees provision is inoperative. As

then-Judge Kavanaugh explained, when an anti-SLAPP

statute “does not purport to make attorney’s fees available to

parties who obtain dismissal by other means, such as under

Federal Rule 12(b)(6),” “attorney’s fees under the Anti-

SLAPP Act are not available.” Abbas, 783 F.3d at 1337 n.5.

Or as the Fifth Circuit put it, the fee-shifting provisions in an

anti-SLAPP law “are not applicable apart from the burden-

shifting early dismissal framework.” Klocke, 936 F.3d at

247 n.6; see also La Liberte, 966 F.3d at 88–89 (explaining

that because the California anti-SLAPP statute “awards

attorneys’ fees only to ‘a prevailing [party] on a special

motion to strike,’” a plaintiff may not recover fees “under the

anti-SLAPP statute if she later prevails by other means”

(quoting Cal. Civ. Proc. Code § 425.16(c)(1)).

The logic of these decisions applies as well to the current

state of Ninth Circuit case law, placing us in conflict with

our sister circuits. Federal defendants who prevail on an

anti-SLAPP motion in the Ninth Circuit are not truly

prevailing on that motion as the California legislature

GOPHER MEDIA LLC V. MELONE 41

conceived it. Instead, they are winning on some “hybrid

mess” of a motion, Makaeff, 715 F.3d at 275 (Paez, J.,

concurring), that, after today’s decision, resembles its state

court counterpart even less. The Supreme Court “since 1796

. . . has maintained that ‘the Judiciary itself would not create

a general rule, independent of any statute, allowing awards

of attorneys’ fees in federal courts.’” Lackey, 604 U.S. at

199 (quoting Alyeska Pipeline, 421 U.S. at 249). Today’s

decision results in that very form of unauthorized fee-

shifting.

There is also every reason to think that the regime that

remains in place after today’s decision will lead to attorneys’

fees questions that would never arise under the statute as

enacted. Again, the core features of California’s anti-

SLAPP law were designed to “provide a mechanism for the

early termination of claims” that fell within the statute’s

ambit. Newport Harbor, 413 P.3d at 653 (quoting Lam, 111

Cal. Rptr. 2d at 589). But with generally no discovery,

defendant-friendly legal standards, and interlocutory

appeals, California ensured that anti-SLAPP motions would

be resolved expeditiously and, as a result, less expensively.

See id. at 655 (explaining that the anti-SLAPP statute

provides “a means for the prompt and relatively inexpensive

resolution of lawsuits that threaten free speech”).

But now consider the fees issue in federal court. With

discovery, see Metabolife, 264 F.3d at 846, more plaintiff-

friendly legal standards, see Planned Parenthood, 890 F.3d

at 833–34, and now no interlocutory appeals, the cost of

litigating an anti-SLAPP motion in federal court will surely

be much greater than it would have been in California state

court. The denial of interlocutory appeals, in particular, is

likely to play a major role in increasing litigation costs,

because the effect of those appeals was not only a quick

42 GOPHER MEDIA LLC V. MELONE

answer on appeal, but typically a stay of proceedings in

district court. Now imagine that an anti-SLAPP motion is

denied, there is no interlocutory appeal, and the parties

litigate the case to final judgment, only for the court of

appeals to conclude years later that the anti-SLAPP motion

should have been granted at the outset. How should fees be

assessed in that situation? After today’s decision, we can

expect a wave of new issues relating to outsized fee awards,

made possible by the majority’s decision to retain the

statute’s sole remaining core feature—fee-shifting—but to

inter the rest.

It would have been far better to avoid these issues

entirely by aligning our law with the dominant and clearly

correct position that the anti-SLAPP statute does not apply

in federal court. The majority opinion is already dismissing

stare decisis concerns and overruling decades of past

precedent that permitted interlocutory appeals of the denial

of anti-SLAPP motions. The effects of today’s decision will

already be significant. Why not just finish the job? The

issue matters not just to prevent judicially unauthorized fee

shifting, but because district courts are constantly confronted

with the additional burden of parasitical anti-SLAPP

motions, which often raise nettlesome questions about the

interaction between state and federal procedure. We could

have restored the rule of law and made everyone’s lives

much easier by returning to the basic proposition that unless

Congress specifies otherwise, it is the Federal Rules that

“govern the procedure in all civil actions and proceedings in

the United States district courts.” Fed. R. Civ. P. 1.

B

There are a few common objections to the majority

position that nearly every circuit but this one has adopted.

GOPHER MEDIA LLC V. MELONE 43

These objections do not stand up, as the other circuits have

rightly concluded.

First, some may argue that federal courts should apply

state anti-SLAPP statutes because those laws serve the

important and beneficial purpose of protecting defendants

from lawsuits that threaten their free speech rights. This

argument fails because it is not up to us to devise greater

procedural protections than the law confers. As the Second

Circuit has explained, “[t]he idea that the more stringent

requirement of the anti-SLAPP standard is a beneficial

‘supplement’ to the Federal Rules is a policy argument—and

fatal, because the more permissive standards of the Federal

Rules likewise reflect policy judgments as to what is

sufficient.” La Liberte, 966 F.3d at 88.

Congress can adjust the rules governing litigation,

including the pleading standards. It has done so, for

example, for fraud claims, see Fed. R. Civ. P. 9(b), and for

violations of the securities laws, see Private Securities

Litigation Reform Act (PSLRA) of 1995, Pub. L. No. 104–

67, 109 Stat. 737 (1995); Tellabs, Inc v. Makor Issues &

Rights, Ltd., 551 U.S. 308, 321 (2007). As the Supreme

Court has explained, Congress “has ultimate authority over

the Federal Rules of Civil Procedure; it can create exceptions

to an individual rule as it sees fit—either by directly

amending the rule or by enacting a separate statute

overriding it in certain instances.” Shady Grove, 559 U.S. at

400. In the case of anti-SLAPP statutes, moreover, it is not

necessarily all upside. California courts have themselves

expressed concern that anti-SLAPP motions “present[ ] the

possibility for abuse.” Newport Harbor, 413 P.3d at 655

(quoting Platypus Wear, Inc. v. Goldberg, 83 Cal. Rptr. 3d

95, 103 (Cal. Ct. App. 2008)). It is up to Congress, not the

44 GOPHER MEDIA LLC V. MELONE

courts, to decide whether the perceived benefits of an anti-

SLAPP statute outweigh the costs.

Second, and related, some argue that if we do not apply

the anti-SLAPP statute, plaintiffs who want to silence their

critics through lawsuits will engage in forum-shopping in

federal court. But when “Federal Rules 12 and 56 answer

the same question as the Anti-SLAPP Act’s special motion

to dismiss provision,” Abbas, 783 F.3d at 1336, that is the

end of the matter. Nor can there be any doubt that Rules 12

and 56 are valid under the Rules Enabling Act. See, e.g.,

Klocke, 936 F.3d at 247–48; Carbone, 910 F.3d at 1356–57;

Abbas, 783 F.3d at 1336–37. If forum-shopping is the result

of not applying the anti-SLAPP statute in federal court, that

is “the inevitable (indeed, one might say the intended) result

of a uniform system of federal procedure.” Shady Grove,

559 U.S. at 416 (plurality op.).

In any event, the concerns of forum-shopping are surely

more imagined than real. The anti-SLAPP statute does not

create new substantive rights; it protects existing ones. See

Makaeff, 715 F.3d at 273 (Kozinski, C.J., joined by Paez, J.,

concurring). There is no reason to believe that federal courts

are incapable of dealing with plaintiffs who seek to use

litigation to chill speech. See Los Lobos Renewable Power,

885 F.3d at 673 n.8 (holding that New Mexico’s anti-SLAPP

statute does not apply in federal court but cautioning that

“[a]nyone who believes that a federal district court is ill-

equipped to deal swiftly and harshly with the sort of lawsuits

described in [the anti-SLAPP law] is seriously mistaken”

and “in for a rude awakening”).

Of course, if the forum-shopping concerns were so

overriding as to carry the day, then today’s decision—and

our multi-decade endeavor of paring back the anti-SLAPP

GOPHER MEDIA LLC V. MELONE 45

statute when invoked in federal court—are themselves

unjustified. To avoid conflicts with federal procedural rules,

our case law already weakens the protections of the anti-

SLAPP statute for lawsuits filed in federal court. If forum

shopping is the predominant concern, the majority should be

overruling Metabolife and Planned Parenthood, not further

weakening the anti-SLAPP statute by removing the

protections associated with interlocutory appeals. Although

it is questionable whether anyone would choose a federal

forum based on the anti-SLAPP decisional law alone, the

incentives for forum shopping in federal court on this basis

already exist, and they will be even stronger after today’s

decision. But we have never thought those concerns

sufficient. And there is no indication in our multi-decade

experiment with the anti-SLAPP laws that plaintiffs have

specifically selected the federal courts on the theory that they

are less protective of free speech interests.

Third, and another variation on the above two points,

some will argue that what California has done through its

anti-SLAPP statute is effectively create a cause of action,

akin to abuse of process, which federal courts are bound to

respect under Erie. But the difficulty here is that California

did not create a cause of action; it instead adopted a set of

procedures that answer the same question as the Federal

Rules of Civil Procedure. Other circuits have had little

difficulty rejecting this same argument. As the Eleventh

Circuit has explained, “the problem with the argument” is

that “the means by which the [anti-SLAPP statute] pursues

its special purpose is by winnowing claims and defenses in

the course of litigation, just like Rules 12 and 56.” Carbone,

910 F.3d at 1354. It is “irrelevant” that the anti-SLAPP

statute seeks to protect speech interests because it “advances

that end by imposing a requirement on a plaintiff’s

46 GOPHER MEDIA LLC V. MELONE

entitlement to maintain a suit over and above the

requirements contemplated by the Federal Rules that control

the same question.” Id.; see also Abbas, 783 F.3d at 1335

(“Had the D.C. Council simply wanted to permit courts to

award attorney’s fees to prevailing defendants in these kinds

of defamation cases, it easily could have done so. But the

D.C. Council instead enacted a new provision that answers

the same question about the circumstances under which a

court must grant pre-trial judgment to defendants.”).

It thus proves nothing to observe that California’s anti-

SLAPP statute promotes substantive interests. All

procedural rules can be said to do that in some way or

another. See Shady Grove, 559 U.S. at 404 (explaining that

“many state rules ostensibly addressed to procedure” could

be recharacterized as “substantive,” and that “[p]leading

standards, for example, often embody policy preferences

about the types of claims that should succeed”).

Acknowledging the substantive motivations behind the anti-

SLAPP statute does not change the fact that it is, as the

California Supreme Court described it, “a procedural

device.” Kibler v. N. Inyo Cnty. Local Hosp. Dist., 138 P.3d

193, 198 (Cal. 2006). But a state procedural device has no

place in federal litigation.

C

Drawing on the same three points above, Judge

Bennett’s concurring opinion would conclude that, stripped

down to its fee-shifting provision, California’s anti-SLAPP

statute applies in federal court. But Judge Bennett’s

concurrence is mistaken for the reasons I have just

explained. And it would only perpetuate the lopsided circuit

split that has emerged after nearly every other circuit to

address the issue has disagreed with us. Contrary to Judge

GOPHER MEDIA LLC V. MELONE 47

Bennett’s belief that the other circuits “framed the question

differently” than he does, Bennett Concurrence at 19 n.4, the

Second, Fifth, Tenth, Eleventh, and D.C. Circuits simply

disagree with his reasoning. And three of these circuits have

specifically rejected the notion that an anti-SLAPP

attorneys’ fee provision could carry forward without the rest

of the statute. See La Liberte, 966 F.3d at 88–89; Klocke,

936 F.3d at 247 n.6; Abbas, 783 F.3d at 1337 n.5.

The core premise of Judge Bennett’s concurrence is that

the anti-SLAPP statute “create[s] a substantive right.”

Bennett Concurrence at 15. But as the Eleventh Circuit

explained, “this argument is a nonstarter” because the anti-

SLAPP statute “‘creates no substantive rights; it merely

provides a procedural mechanism for vindicating existing

rights.’” Carbone, 910 F.3d at 1355 (quoting Makaeff, 715

F.3d at 273 (Kozinski, C.J., concurring)); see also Klocke,

936 F.3d at 247. Judge Bennett’s position is also at odds

with the California Supreme Court’s own repeated

description of the anti-SLAPP statute as “a procedural

device,” Kibler, 138 P.3d at 198, and “procedural statute,”

Soukup v. Law Offices of Herbert Hafif, 139 P.3d 30, 43

(Cal. 2006).

The only reason that Judge Bennett can even suggest

otherwise is because our cases have now rejected various

aspects of the anti-SLAPP law as inconsistent with the

Federal Rules of Civil Procedure. But contrary to his

assertion that we have “reconciled” the anti-SLAPP statute

with Rules 12 and 56, Bennett Concurrence at 17 n.3, 20–

21, 23 n.6, no reconciliation was accomplished, nor was it

even possible: we simply rewrote the anti-SLAPP statute

wholesale. The fact that we had to do that should have led

us to conclude that the anti-SLAPP statute does not apply in

federal court at all. It does not justify Judge Bennett’s effort

48 GOPHER MEDIA LLC V. MELONE

to re-label as substantive a reconstructed, federal-court-only

anti-SLAPP statute that looks nothing like the anti-SLAPP

statute that applies in California state court. Judge Bennett’s

position thus has no foothold in the statute he would purport

to apply. And we have no authority to order fee-shifting

“independent of any statute.” Lackey, 604 U.S. at 199

(quoting Alyeska Pipeline, 421 U.S. at 249).

* * *

We should have held that California’s anti-SLAPP

statute does not apply in federal court. When the issue

presents itself again, which it surely will, I hope we will end

our confusing efforts to meld federal and state procedural

law. No authority permits us to blend these two bodies of

law as we have, an endeavor that has bedeviled federal

practice and left in its wake a version of the anti-SLAPP

statute that bears no resemblance to the real thing.