Henry v. Lake Charles American Press, L.L.C.

REVISED April 15, 2009

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 08-30201 April 14, 2009

Charles R. Fulbruge III

MARK HENRY Clerk

Plaintiff-Appellee

v.

LAKE CHARLES AMERICAN PRESS LLC; LAKE CHARLES AMERICAN

PRESS INC; SHEARMAN CO LLC; SHEARMAN CORP; HECTOR SAN

MIGUEL

Defendants-Appellants

Appeal from the United States District Court

for the Western District of Louisiana

Before SMITH, BARKSDALE, and PRADO, Circuit Judges.

PRADO, Circuit Judge:

In the forty-five years since the Supreme Court’s decision in New York

Times Co. v. Sullivan, 376 U.S. 254 (1964), courts and legislatures have

endeavored to strike a balance between individuals’ interests in their reputation

and the public interest in free and robust debate. The resulting interplay of

defamation law and the First Amendment has substantially lessened the chilling

effect of abusive tort claims for conduct stemming from the exercise of First

Amendment rights. While these efforts have shielded individuals from the chill

No. 08-30201

of liability, they have often failed to protect speakers from the similarly-chilling

cost and burden of defending such tort claims. Concerned over the growth of

meritless lawsuits that have the purpose or effect of chilling the exercise of First

Amendment rights, a number of state legislatures have created a novel method

for better striking the balance between interests in individual reputation and

freedom of speech.

This appeal addresses one such method, specifically, Article 971 of

Louisiana’s Code of Civil Procedure. Article 971 provides a mechanism whereby

a plaintiff bringing a defamation claim must show a probability of success on the

merits before proceeding. Defendants-Appellants consist of four entities—Lake

Charles American Press, L.L.C.; Lake Charles American Press, Inc.; Shearman

Co. L.L.C.; and Shearman Corp.—as well as the author of the majority of the

newspaper articles in question—Hector San Miguel (collectively “American

Press”). American Press brought an Article 971 motion in response to Plaintiff-

Appellee Mark Henry’s (“Henry”) defamation suit. Henry, owner of an airport

refueling operation, asserts that American Press defamed him by reporting that

Henry provided military aircraft with contaminated fuel that caused their

engines to fail, or “flame out.”

The district court denied American Press’s motion, and American Press

brought an immediate appeal. As a threshold matter, we hold that we have

jurisdiction over this interlocutory appeal. Moreover, as Henry has failed to

establish the necessary probability of success, we reverse the district court’s

order and render judgment dismissing Henry’s defamation claim. Further, we

remand the case to the district court for a determination of American Press’s

entitlement to fees and costs.

I. FACTUAL AND PROCEDURAL BACKGROUND

Henry was the owner and president of Chennault Jet Center, Inc. (“CJC”)

from 1995 to 2005. CJC operated out of the Chennault International Airport in

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Lake Charles, Louisiana, and had contracted with the Defense Logistics Agency

to refuel military aircraft. In February 2005, the government notified CJC that

it was initiating an investigation into whether CJC had sold contractually

noncompliant fuel for use in military aircraft. In April 2005, the government

terminated the Defense Logistics Agency’s contract with CJC.

From May 2005 to January 2006, American Press published a series of

articles describing the investigation of CJC’s fueling practices. Henry asserts

that these articles contained several defamatory statements, but focuses

primarily on reports that CJC provided “contaminated fuel” to military aircraft

that may have caused them to flame out.

On May 10, 2006, Henry sued American Press for defamation in Texas

state court. American Press removed the case to the Southern District of Texas

on the basis of diversity and later successfully moved to transfer the case to the

Western District of Louisiana. On August 20, 2007, the district court

determined that Louisiana substantive law governed the dispute and permitted

American Press to file a special motion to strike pursuant to Article 971 of the

Louisiana Code of Civil Procedure (“Article 971”). As discussed further below,

Article 971 provides a mechanism whereby plaintiffs bringing certain tort claims

must show a probability of success on their claim before proceeding. The district

court initially denied American Press’s Article 971 motion, and American Press

requested reconsideration. The district court granted reconsideration and again

denied American Press’s motion in a more detailed opinion. American Press

then filed a notice of appeal from the district court’s order denying its Article 971

motion.

II. STANDARD OF REVIEW

Louisiana law, including the nominally-procedural Article 971, governs

this diversity case. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938);

Welborn v. State Farm Mut. Auto. Ins. Co., 480 F.3d 685, 687 (5th Cir. 2007) (per

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No. 08-30201

curiam); cf. United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190

F.3d 963, 972–73 (9th Cir. 1999) (holding that a similar motion to strike under

California state law applies in federal court); Thomas v. Fry’s Elecs., Inc., 400

F.3d 1206, 1207 (9th Cir. 2005) (per curiam) (reaffirming Newsham).

This court has jurisdiction to determine its own jurisdiction. Houston

Cmty. Hosp. v. Blue Cross & Blue Shield of Tex., Inc., 481 F.3d 265, 268 (5th Cir.

2007). As to the merits, an Article 971 special motion to strike presents a

question of law that Louisiana state courts review de novo. See, e.g., Melius v.

Keiffer, 980 So. 2d 167, 170 (La. App. 4th Cir. 2008); Lamz v. Wells, 938 So. 2d

792, 795 (La. App. 1st Cir. 2006); Aymond v. Dupree, 928 So. 2d 721, 726 (La.

App. 3d Cir.), writ denied, 938 So. 2d 85 (La. 2006). Thus, this court reviews de

novo a district court’s ruling on an Article 971 motion. Cf. Zamani v. Carnes,

491 F.3d 990, 994 (9th Cir. 2007) (reviewing de novo a district court’s decision

on a similar motion to strike under California state law); Bosley Med. Inst., Inc.

v. Kremer, 403 F.3d 672, 676 (9th Cir. 2005) (same); Vess v. Ciba-Geigy Corp.

USA, 317 F.3d 1097, 1102 (9th Cir. 2003) (same).

III. DISCUSSION

A. Jurisdiction

1. Louisiana’s Article 971

A number of state legislatures have expressed concerns over the use (or

abuse) of lawsuits that have the purpose or effect of chilling the exercise of First

Amendment rights. These suits are commonly referred to as “strategic lawsuits

against public participation,” or “SLAPPs.” In response to the growth of

SLAPPs, some states have provided a procedural method—often called a “special

motion to strike” but also known as an “anti-SLAPP motion” or

“SLAPPback”—to weed out and dismiss meritless claims early in litigation.

Dismissal of these frivolous tort claims saves defendants the cost and burden of

trial and minimizes the chilling effect of these lawsuits. At the same time,

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No. 08-30201

meritorious claims proceed, vindicating the interests of those who actually

suffered from defamation or other torts.

Article 971 of the Louisiana Code of Civil Procedure provides one such

method. In the act creating Article 971, the Louisiana legislature set out the

reasons behind and purposes of the law:

The legislature finds and declares that there has been a disturbing

increase in lawsuits brought primarily to chill the valid exercise of

the constitutional rights of freedom of speech and petition for

redress of grievances. The legislature finds and declares that it is

in the public interest to encourage continued participation in

matters of public significance, and that this participation should not

be chilled through abuse of the judicial process. To this end, it is the

intention of the legislature that the Article enacted pursuant to this

Act shall be construed broadly.

Thomas v. City of Monroe, 833 So. 2d 1282, 1286 (La. App. 2d Cir. 2002) (quoting

1999 La. Acts 734). Thus, “Article 971 was enacted by the legislature as a

procedural device to be used early in legal proceedings to screen meritless claims

pursued to chill one’s constitutional rights under the First Amendment of the

United States Constitution to freedom of speech and press.” Lee v. Pennington,

830 So. 2d 1037, 1041 (La. App. 4th Cir. 2002), writ denied, 836 So. 2d 52 (La.

2003); see also Lamz, 938 So. 2d at 796 (“The intent of Article 971 is to encourage

continued participation in matters of public significance and to prevent this

participation from being chilled through an abuse of judicial process.”); Baxter

v. Scott, 847 So. 2d 225, 231 (La. App. 2d Cir.) (“Article 971 is a procedural

device to be used in the early stages of litigation to screen those claims which

lack merit and which would chill public participation in matters of public

interest.”), vacated as moot, 860 So. 2d 535 (La. 2003); Stern v. Doe, 806 So. 2d

98, 100 (La. App. 4th Cir. 2001) (“The purpose of [Article 971] is to review

frivolous and meritless claims against the media at a very early stage in the

legal proceedings.”).

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The portion of Article 971 relevant to the present purposes provides as

follows:

A cause of action against a person arising from any act of that

person in furtherance of the person’s right of petition or free speech

under the United States or Louisiana Constitution in connection

with a public issue shall be subject to a special motion to strike,

unless the court determines that the plaintiff has established a

probability of success on the claim.

LA. CODE CIV. PROC. art. 971(A)(1). Once a defendant files an Article 971 motion,

the trial court stays all discovery except that which the court, “on noticed motion

and for good cause,” orders to be conducted. Id. art. 971(D). The prevailing

party on a special motion is entitled to reasonable attorneys fees and costs, id.

art. 971(B), and a plaintiff that successfully establishes a probability of success

on the merits may submit the trial court’s determination as evidence at trial, id.

art. 971(A)(3).

Article 971 establishes a burden-shifting analysis for weeding out frivolous

claims. To succeed on an Article 971 motion, the defendant must first make a

prima facie showing that Article 971 covers the activity underlying the suit.

That is, the defendant must “establish[] that a cause of action against him arises

from an act by him in furtherance of the exercise of his right of petition or free

speech under the United States or Louisiana Constitution in connection with a

public issue.” Starr v. Boudreaux, 978 So. 2d 384, 388–89 (La. App. 1st Cir.

2007). If the defendant makes this showing, “the burden then shifts to the

plaintiff to demonstrate a probability of success on his claim.” Id. at 389.

If the plaintiff fails to demonstrate a probability of success, the trial court

dismisses the claim. Otherwise, the trial court denies the motion and the suit

proceeds as it normally would. In Louisiana state courts, an unsuccessful

movant can obtain immediate appellate review of the trial court’s denial of the

Article 971 motion through a writ of supervision under Article 2201 of the

Louisiana Code of Civil Procedure. See LA. CODE CIV. PROC. art. 2201

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(“Supervisory writs may be applied for and granted in accordance with the

constitution and rules of the supreme court and other courts exercising appellate

jurisdiction.”). Several Louisiana courts of appeal have immediately reviewed

a trial court’s denial of an Article 971 motion pursuant to these supervisory

writs. See, e.g., Darden v. Smith, 879 So. 2d 390, 393 (La. App. 3d Cir.), writ

denied, 887 So. 2d 480 (La. 2004); Baxter, 847 So. 2d at 230; Benson v. City of

Marksville, 812 So. 2d 687, 690 (La. App. 3d Cir.), writ denied, 817 So. 2d 1158

(La. 2002).

2. The Collateral Order Doctrine

The threshold issue in this appeal is whether a district court’s denial of an

Article 971 motion is immediately appealable under 28 U.S.C. § 1291. “[S]ince

appeals of right have been authorized by Congress . . . , there has been a firm

congressional policy against interlocutory or ‘piecemeal’ appeals and courts have

consistently given effect to that policy.” Abney v. United States, 431 U.S. 651,

656 (1977). Section 1291 is part of that policy. Under § 1291, this court has

“jurisdiction of appeals from all final decisions of the district courts of the United

States.” 28 U.S.C. § 1291. “For purposes of [§ 1291], a final judgment is

normally deemed not to have occurred ‘until there has been a decision by the

District Court that ends the litigation on the merits and leaves nothing for the

court to do but execute the judgment.’” Midland Asphalt Corp. v. United States,

489 U.S. 794, 798 (1989) (quoting Van Cauwenberghe v. Biard, 486 U.S. 517, 521

(1988)). Thus, as a general rule, parties must litigate all issues in the trial court

before appealing any one issue. “Appeal is thereby precluded from any decision

which is tentative, informal or incomplete, as well as from any fully

consummated decisions, where they are but steps towards final judgment in

which they will merge.” P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,

506 U.S. 139, 142 (1993) (quotation marks omitted).

In Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949), the

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Supreme Court recognized the existence of a “small class [of decisions] which

finally determine claims of right separable from, and collateral to, rights

asserted in the action, too important to be denied review and too independent of

the cause itself to require that appellate consideration be deferred until the

whole case is adjudicated.” Thus was born the “collateral order doctrine,” which

“establishes that certain decisions of the district court are final in effect although

they do not dispose of the litigation.” Davis v. E. Baton Rouge Parish Sch. Bd.,

78 F.3d 920, 925 (5th Cir. 1996). The Cohen Court noted that it “ha[d] long

given [§ 1291] this practical rather than a technical construction,” 337 U.S. at

546, and later courts have emphasized that “[t]he collateral order doctrine is best

understood not as an exception to the ‘final decision’ rule laid down by Congress

in § 1291, but as a ‘practical construction’ of it,” Digital Equip. Corp. v. Desktop

Direct, Inc., 511 U.S. 863, 867 (1994); see also Will v. Hallock, 546 U.S. 345, 349

(2006); Regan v. Starcraft Marine, LLC, 524 F.3d 627, 632 (5th Cir. 2008);

Sherwinski v. Peterson, 98 F.3d 849, 851 (5th Cir. 1996). The primary issue in

the present appeal, then, is whether a district court’s denial of an Article 971

motion is among that “small class of interlocutory orders [that] are immediately

appealable to the courts of appeals.” Nixon v. Fitzgerald, 457 U.S. 731, 742

(1982).

To fall within Cohen’s collateral order doctrine, an “order 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.” Coopers & Lybrand v. Livesay,

437 U.S. 463, 468 (1978) (numbering added); see also Will, 546 U.S. at 349

(noting that “[t]he requirements for collateral order appeal have been distilled

down to [these] three conditions”). Although the second condition requires that

an issue be “important,” there has been much confusion over where importance

actually applies. See Kelly v. Ford Motor Co. (In re Ford Motor Co.), 110 F.3d

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954, 959 (3d Cir. 1997) (noting that “the jurisprudence surrounding the

importance criterion is somewhat murky”). Some Fifth Circuit cases treat

separability and importance as two distinct conditions of the collateral order

doctrine, see, e.g., Acosta v. Tenneco Oil Co., 913 F.2d 205, 207–08 (5th Cir.

1990), while others treat them as one, see, e.g., Goodman v. Harris County, 443

F.3d 464, 469 (5th Cir. 2006). The Supreme Court has discussed importance in

the context of the third numbered element, unreviewability, and (as discussed

below) recent Supreme Court decisions increasingly look to importance as a

general and overarching consideration in the collateral order inquiry.

The confusion over where importance fits into the collateral order analysis

is a symptom of the more general confusion over what constitutes a final

collateral order. As Judge Jerome Frank once said,

“Final” is not a clear one-purpose word; it is slithery, tricky. It does

not have a meaning constant in all contexts. What was said as to

“final” orders a half century ago still holds: The cases, it must be

conceded, are not altogether harmonious. There is, still, too little

finality about “finality.” “A final decision” is not necessarily the

ultimate judgment or decree completely closing up a proceeding.

But it is not easy to determine what decisions short of that point are

final.

United States v. 243.22 Acres of Land, 129 F.2d 678, 680 (2d Cir. 1942)

(quotation marks, citations, and footnotes omitted). In determining finality,

courts have been inconsistent in enumerating the conditions that an order must

meet to be considered collateral, resulting in such a variety of formulations that

“it is easy to point to cases that ignore some of [the collateral order conditions]

or twist them into unrecognizable shapes.” 15A CHARLES ALAN WRIGHT, ARTHUR

R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3911, at

329–30 (2d ed. 1992). The inconsistencies do not stop at the enumeration of

conditions; applications of the conditions vary in their strictness, and

distinctions drawn between cases are sometimes difficult to reconcile. As one

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court has put it, “No one can make a seamless web out of all of the decisions on

collateral orders.” United States v. Billmyer, 57 F.3d 31, 35 (1st Cir. 1995).

Other courts and commentators have maligned current finality jurisprudence as

“hopelessly complicated,” “legal gymnastics,” “dazzling in its

complexity,” “unconscionable intricacy” with “overlapping

exceptions, each less lucid than the next,” “an unacceptable morass,”

“dizzying,” “tortured,” “a jurisprudence of unbelievable

impenetrability,” “helter-skelter,” “a crazy quilt,” “a near-chaotic

state of affairs,” a “Serbonian Bog,” and “sorely in need of limiting

principles.”

Adam N. Steinman, Reinventing Appellate Jurisdiction, 48 B.C. L. REV. 1237,

1238–39 (2007) (citations omitted). Indeed, one commentator has suggested that

the Cohen conditions are not really what determine whether an order is

immediately appealable, as the collateral order doctrine’s “cumbersome-yet-

unhelpful framework” obscures “the policy judgments that actually determine

whether immediate appellate review is available.” Id. at 1243.

Part of this confusion stems from the three Cohen conditions—conclusivity,

separability, and unreviewability. There exists in each of these conditions

substantial nuance, and it is in this nuance that we find the interests that drive

collateral order determinations. That is, the collateral order determination often

involves, explicitly or not, a balancing of the interests in postponing appellate

review (finality, efficiency, etc.) and in allowing immediate review (the

importance of the asserted right, the consequences of disallowing immediate

appeal, etc.). Moreover, although we sometimes speak of the three Cohen

criteria as strict preconditions for appellate review, see, e.g., Goodman, 443 F.3d

at 468, even a brief exploration of the case law reveals that they might better be

regarded as guidelines in making the pragmatic determination of whether to

allow an order to be immediately appealed.

Granted, a wholly pragmatic approach to finality inexcusably sacrifices

clarity and predictability. Indeed, a case-by-case approach to the collateral order

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doctrine would be inimical to the general final order rule, as it would require

balancing in each and every case. Under such an approach, every order would

be appealable if only to determine whether jurisdiction existed to appeal the

order. Thus, a wholly pragmatic approach would undermine the interests that

lie at the heart of the collateral order doctrine.

Consequently, we do not weigh the interests of granting and denying

immediate appellate review in each and every case. Consistent with Supreme

Court precedent and the general purposes of the final judgment rule, we

determine whether an order is appealable as a general or categorical matter.

See Cunningham v. Hamilton County, 527 U.S. 198, 206 (1999) (“[W]e have

consistently eschewed a case-by-case approach to deciding whether an order is

sufficiently collateral.”); Digital Equip., 511 U.S. at 868 (“[T]he issue of

appealability under § 1291 is to be determined for the entire category to which

a claim belongs, without regard to the chance that the litigation at hand might

be speeded, or a particular injustice averted, by a prompt appellate court

decision.” (quotation marks, citation, and alteration omitted)); see also In re

Carco Elec., 536 F.3d 211, 213 (3d Cir. 2008) (“[T]he Supreme Court’s statement

in Cunningham that we should not apply the collateral order doctrine on a ‘case-

by-case’ basis indicates that we should not attempt to carve out individualized,

case-specific exceptions to the general rule that discovery orders are not

immediately appealable.”). In other words, instead of making these decisions on

a case-by-case basis, we make them on a type-of-order-by-type-of-order basis.

Thus, for our present purposes, we do not look to whether the order in the

context of this particular case is immediately appealable, but to whether orders

denying motions brought under anti-SLAPP statutes such as Article 971 satisfy

the conditions of the collateral order doctrine. To do so, an order denying such

a motion must be sufficiently conclusive, separate, unreviewable, and (perhaps

most-importantly) important that the benefits of immediate appellate review

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outweigh the loss of efficiency that any movement away from a strict finality

approach entails.

a. Conclusivity

We must first determine whether the denial of an Article 971 motion is

conclusive. Conclusivity does not merely require that the specific issue be

conclusively determined; were that the case, any issue on which a district court

has rendered a decision would be conclusive. See Goodman, 443 F.3d at 468.

Instead, for an order to be conclusive, it should not be subject to later review or

revision in the district court. See Coopers & Lybrand, 437 U.S. at 469 (noting

that the denial of a request for class certification is not conclusive under the

collateral order doctrine because “such an order is subject to revision in the

District Court”); Baldridge v. SBC Commc’ns., Inc., 404 F.3d 930, 931 (5th Cir.

2005) (noting that the denial of a request for certification for a Fair Labor

Standards Act collective action is not conclusive under the collateral order

doctrine because it “is subject to revision before the district court addresses the

merits”). The mere power to revisit an order, however, is insufficient to preclude

a finding of conclusivity; it should be unlikely that the district court will revisit

the order. See 15A WRIGHT ET AL., supra, § 3911, at 333 (“So long as there is a

plain prospect that the trial court may itself alter the challenged ruling, there

is little justification for immediate appellate intrusion. The bare fact that the

court has power to change its ruling, however, does not preclude review. It is

enough that no further consideration is contemplated.” (citations omitted)). That

is, the order should be one that a district court rarely, if ever, revisits.

An order denying an Article 971 motion satisfies any concerns regarding

conclusivity. A district court’s denial of an Article 971 motion is conclusive as

to whether Article 971 mandates dismissal of the suit. The motion freezes a suit

while the court determines whether the plaintiff’s claim has merit. If a trial

court grants an Article 971 motion, the litigation ceases and the case is

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dismissed. If a trial court denies an Article 971 motion, then the case proceeds

as it normally would. There is also no indication that a trial court would revisit

an earlier decision on an Article 971 motion. We therefore conclude that an

order denying an Article 971 motion is conclusive for the purposes of the

collateral order doctrine.

b. Separability

Second, we must determine whether an Article 971 motion resolves an

issue completely separate from the merits of the case. Issues are not separate

“where they are but steps towards [a] final judgment in which they will merge.”

Cohen, 337 U.S. at 546. Moreover, where the issues raised in an interlocutory

appeal “involve[] considerations that are ‘enmeshed in the factual and legal

issues comprising the plaintiff’s cause of action,’” the order is often found not to

be separate. Coopers & Lybrand, 437 U.S. at 469 (quoting Mercantile Nat’l Bank

v. Langdeau, 371 U.S. 555, 558 (1963)).

For example, in Pan Eastern Exploration Co. v. Hufo Oils, 798 F.2d 837,

838 (5th Cir. 1986), the trial court denied a foreign defendant’s motion to dismiss

proceedings against it based upon considerations of international comity. The

defendant argued that the district court should have granted the motion out of

deference to a Canadian court’s order staying all judicial proceedings against the

defendant. Id. In determining that the denial of the defendant’s motion was not

an immediately-appealable collateral order, this court noted that “the

considerations necessary to decide whether to extend comity to the Canadian

stay order [were] inextricably bound with the facts relevant to the merits.” Id.

at 839. Because “[t]he substantiality of [the plaintiff’s] claims [was] relevant to

the question [of] whether comity [was] consistent with domestic interests,” the

court concluded that the issues underlying the motion to dismiss were not

sufficiently separate from the merits. Id. at 840.

In contrast, courts have held that issues concerning immunity from suit

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are often separate from the underlying dispute in the litigation. For example,

in Mitchell v. Forsyth, 472 U.S. 511, 527–28 (1985), the Supreme Court noted

that a claim of qualified immunity “is conceptually distinct from the merits of

the plaintiff’s claim” because “[a]n appellate court reviewing the denial of the

defendant’s claim of immunity 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.” Similarly, in Abney, the Court held that a denial of a

claim of double jeopardy immunity was separate from the underlying dispute

because “the very nature of a double jeopardy claim is such that it is collateral

to, and separable from[,] the principal issue at the accused’s impending criminal

trial, i.e., whether or not the accused is guilty of the offense charged.” 431 U.S.

at 659 (italics omitted). The immunity decisions indicate that some involvement

with the underlying facts is acceptable, as the Court has found the issue of

immunity to be separate from the merits of the underlying dispute “even though

a reviewing court must consider the plaintiff’s factual allegations in resolving

the immunity issue.” Mitchell, 472 U.S. at 529; see also Moore v. Felger, 19 F.3d

1054, 1057 (5th Cir. 1994) (“This court has exercised appellate jurisdiction when

factual disputes relevant to the district court decision on the qualified immunity

question were resolvable based on the record.”). Thus, an order does not have

to be separate from the entirety of the underlying dispute to satisfy Cohen.

At first blush, an order denying an Article 971 motion seems to clearly

decide an issue separate from the merits; it determines only the issue of whether

Article 971 requires dismissal of a suit. Our inquiry should not end here,

however, as further consideration raises several concerns. First, the Article 971

determination requires an assessment of the plaintiff’s probability of success.

This risks involving an appellate court in the factual and legal issues underlying

the plaintiff’s claim. Indeed, the Article 971 determination is an assessment of

the merits of a plaintiff’s claim, and this court has previously suggested that

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such an inquiry might weigh against a finding of separability. See Acosta, 913

F.2d at 208 (finding that a discovery order met the separability condition where

“[r]eviewing the propriety of the order does not require this Court to examine the

merits of [the plaintiff’s] claim or [the defendant’s] affirmative defense”).

Second—assuming for the sake of argument that Article 971’s evidentiary

provision would apply in federal court—Article 971 allows plaintiffs to introduce

a trial court’s denial of a special motion to strike as evidence at trial. See LA.

CODE CIV. PROC. art. 971(A)(3). Thus, although an Article 971 motion does not

necessarily involve issues that arise later in the trial, issues that arise later in

the trial might involve an Article 971 motion. This also weighs against a finding

of separability. See Cohen, 337 U.S. at 546 (noting that collateral orders “are not

of such an interlocutory nature as to affect, or to be affected by, decision of the

merits of this case” (emphasis added)).

These potential entanglements, however, are insufficient to forestall a

finding of separability. First, Article 971 has a purpose distinct from that of the

underlying suit. As the Ninth Circuit reasoned in addressing the appealability

of a similar California statute, 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 v. Smith,

333 F.3d 1018, 1025 (9th Cir. 2003). Moreover, “[t]he purpose of an anti-SLAPP

motion is to determine whether the defendant is being forced to defend against

a meritless claim,” not to determine whether the defendant actually committed

the relevant tort. Id. Article 971 thus “exists separately from the merits of the

defamation claim itself.” Id.

Further, the policy behind the collateral order doctrine militates in favor

of finding separability. The final order rule limits appeals to encourage the

aggregation of all necessary issues for one appeal and to provide for efficient

adjudication. The separability requirement furthers this purpose by preventing

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appeals on issues that will be definitively decided later in the case. In this way,

one might characterize separability as a way of ensuring that a movant is not

attempting to have an appellate court preemptively resolve a disputed issue still

pending in the district court. Thus, in Pan Eastern Exploration Co., discussed

above, the issue of whether interests of international comity warranted dismissal

of the suit was dependent upon the interests in proceeding with the litigation,

and the district court would balance these interests as the trial progressed. See

798 F.2d at 840. In contrast, issues of immunity are decided prior to trial and

then not normally revisited. Consequently, even where the immunity

determination looks to the facts underlying the dispute, the immunity

determination is tangential to the merits of the underlying case. Similarly,

although an Article 971 motion looks to the plaintiff’s probability of success, the

court decides it before proceeding to trial and then moves on. Immediate

appellate review would thus determine an issue separate from any issues that

remain before the district court.

Finally, the mere fact that a trial court’s decision denying an Article 971

motion is admissible at trial does not change our conclusion. Article 971(A)(3),

as originally enacted, provided,

If the court determines that the plaintiff has established a

probability of success on the claim, neither that determination nor

the fact of that determination shall be admissible in evidence at any

later stage of the proceeding, and no burden of proof or degree of

proof otherwise applicable shall be affected by that determination.

1999 La. Acts 734. The Louisiana legislature amended this provision in 2004 to

allow a trial court’s denial of an Article 971 motion to be admissible at trial. See

2004 La. Acts 232 (amending Article 971(A)(3) to read, “If the court determines

that the plaintiff has established a probability of success on the claim, that

determination shall be admissible in evidence at any later stage of the

proceeding.”). The purpose of this change is unclear, but this provision appears

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to strike a balance between the costs and benefits of filing an Article 971 motion.

That is, defendants should be hesitant to file a frivolous Article 971 motion, as

an adverse decision can then be used against them at trial.

Although seeming to have a bearing on the underlying suit, we fail to see

how this unique evidentiary provision affects our collateral order analysis in any

substantial way. Granted, if an appellate court affirms a district court’s denial

of an Article 971 motion on an interlocutory appeal, this unique evidentiary rule

could mean that an appellate court’s assessment of the merits of a plaintiff’s

claim might influence future trial proceedings. But a decision on an Article 971

motion is not a ruling on the ultimate merits; it is merely tangential to the

merits. A court deciding an Article 971 motion does not ask whether the

plaintiff has proved her claim, but whether she has shown a sufficient

probability of being able to prove her claim. This is akin to a court determining

only that a plaintiff has presented a threshold showing that allows her claim to

proceed. If the court’s determination is later admitted into evidence, it is only

one piece of evidence that the jury could choose to consider or reject. As such,

it is hardly dispositive as to the merits of the suit. More importantly, this

evidentiary provision does not render the denial of an Article 971 motion any

less (or more) final; it does not affect the efficiency of judicial proceedings, blur

the contours of the issue being appealed, or alter the interests that immediate

appeal vindicates. This provision thus has only a minimal bearing on our

inquiry.

Moreover, the minor possibility of minimal entanglement is insufficient to

overcome the interests that favor a finding of immediate appealability. As

discussed below, Article 971 aims to serve the substantial public interest of

protecting those exercising their First Amendment rights from the chilling effect

of defending meritless and abusive tort suits. Article 971 does so by immunizing

speakers from suits stemming from the exercise of First Amendment rights, thus

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preserving both an individual’s right to speak and the public’s collective interest

in free and robust debate. The importance of the interests that Article 971

serves thus resolves any lingering doubts regarding separability. We therefore

conclude that the denial of an Article 971 motion is sufficiently separate from the

merits of the underlying case for the purposes of the collateral order doctrine.

c. Unreviewability

We must also determine whether a district court’s denial of an Article 971

motion is effectively unreviewable on appeal. Unreviewability is “the

fundamental characteristic of the collateral order doctrine.” Pan E. Exploration

Co., 798 F.2d at 840; see also Mitchell, 472 U.S. at 525 (“A major characteristic

of the denial or granting of a claim appealable under Cohen’s collateral order

doctrine is that unless it can be reviewed before the proceedings terminate, it

can never be reviewed at all.” (quotation marks and alteration omitted)). As this

court stated in Pan Eastern Exploration Co.,

Because of this essential requirement, almost all denials of motions

to dismiss are not immediately appealable. If, on appeal from a

final judgment, an appellate court finds that the motion to dismiss

should have [been] granted, it can direct the lower court to dismiss.

The rights of the movant will have been vindicated, although after

the movant has suffered the expense and delay of trial. As we have

said before, however, this sort of injury follows in every denial of a

motion to dismiss a complaint and does not justify an exception to

the final-judgment rule.

798 F.2d at 840 (quotation marks omitted). Thus, the collateral order doctrine

requires something beyond the right to prevail at an early stage of the

proceedings for an order to be effectively unreviewable.

Perhaps the embodiment of unreviewability, then, is immunity from suit,

“for the essence of . . . immunity is its possessor’s entitlement not to have to

answer for his conduct in a civil damages action.” Mitchell, 472 U.S. at 525.

“The entitlement is an immunity from suit rather than a mere defense to

liability; . . . it is effectively lost if a case is erroneously permitted to go to trial.”

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Id. at 526. In other words, immunity is not simply a right to prevail, but a right

not to be tried. Thus, the Supreme Court and the Fifth Circuit have held that

denials of various forms of immunity are immediately-appealable collateral

orders. See P.R. Aqueduct & Sewer Auth., 506 U.S. at 144–45 (Eleventh

Amendment immunity); Mitchell, 472 U.S. at 527–30 (§ 1983 qualified

immunity); Nixon, 457 U.S. at 743 (absolute executive immunity); Helstoski v.

Meanor, 442 U.S. 500, 508 (1979) (Speech and Debate Clause immunity); Abney,

431 U.S. at 662 (immunity from double jeopardy); Shanks v. AlliedSignal, Inc.,

169 F.3d 988, 992 (5th Cir. 1999) (Texas state law immunity for communications

made during judicial, quasi-judicial, or legislative proceedings); Stena Rederi AB

v. Comision de Contratos del Comite Ejecutivo General, 923 F.2d 380, 385 (5th

Cir. 1991) (Foreign Sovereign Immunities Act immunity); Brown v. Tex. A & M

Univ., 804 F.2d 327, 332 (5th Cir. 1986) (Title VII qualified immunity).

The Supreme Court has warned, however, that “[o]ne must be careful . . .

not to play word games with the concept of a ‘right not to be tried,’” Midland

Asphalt, 489 U.S. at 801, for “virtually every right that could be enforced

appropriately by pretrial dismissal might loosely be described as conferring a

‘right not to stand trial,’” Digital Equip., 511 U.S. at 873. “There is a crucial

distinction between a right not to be tried and a right whose remedy requires the

dismissal of charges. A right not to be tried in the sense relevant to the Cohen

exception rests upon an explicit statutory or constitutional guarantee that trial

will not occur.” Midland Asphalt, 489 U.S. at 801 (quotation marks and citation

omitted). For this reason, courts have held that certain constitutional and

statutory “rights not to be tried” are effectively unreviewable for the purposes

of the collateral order doctrine, while privately contracted “rights not to be tried”

are not. See, e.g., Digital Equip., 511 U.S. at 884; Lauro Lines S.R.L. v. Chasser,

490 U.S. 495, 500–01 (1989).

The denial of an Article 971 motion satisfies the unreviewability condition.

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The purpose of Article 971 is to free defendants from the burden and expense of

litigation that has the purpose or effect of chilling the exercise of First

Amendment rights. Article 971 thus provides a right not to stand trial, as

avoiding the costs of trial is the very purpose of the statute. In other words,

Article 971 does not provide a defense to liability; defendants remain liable for

actual acts of defamation and other torts. But it does provide defendants the

right not to bear the costs of fighting a meritless defamation claim. If an Article

971 motion is erroneously denied and unappealable, then the case proceeds to

trial and this right is effectively destroyed. And in line with the Supreme

Court’s observation in Midland Asphalt, Article 971 provides an explicit

statutory guarantee of a right not to stand trial.

We therefore conclude that the denial of an Article 971 motion is

effectively unreviewable for the purposes of the collateral order doctrine. Not

only does such a denial fall directly within the language of Midland Asphalt, but

the interests underlying both the collateral order doctrine and Article 971

militate in favor of such a conclusion.*

d. Importance

As is perhaps evident from the above discussion, the traditional Cohen

*

We recognize that this holding is not wholly in line with the Ninth Circuit’s recent

decision in Englert v. MacDonnell, 551 F.3d 1099 (2009). In Englert, the court held that the

denial of a special motion to strike under Oregon’s anti-SLAPP statute was not an

immediately-appealable collateral order. Id. at 1104. Relying on the absence of a provision

allowing immediate appellate review of such an order in Oregon state court, the Ninth Circuit

determined that the Oregon legislature did not intend to give defendants a right not to be

tried. Id. at 1105–06. Based on this determination, the court concluded that the denial of a

special order to strike under Oregon law was not “effectively unreviewable” and thus not an

immediately-appealable collateral order. Id.

Like Oregon’s anti-SLAPP statute, Article 971 does not include a provision expressly

authorizing immediate appeal. But the practice of Louisiana courts appears to allow

immediate appeals through writs of supervision. See Darden, 879 So. 2d at 393; Baxter, 847

So. 2d at 230; Benson, 812 So. 2d at 689–90. In any event, for the above-stated reasons, we

hold that Article 971 creates a right not to stand trial, and denial of this right is therefore

“effectively unreviewable.”

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factors for collateral order determinations—conclusivity, separability, and

unreviewability—do not lend themselves to a satisfying and coherent exegesis.

Conclusivity does not simply mean conclusive, as all orders can be construed at

a level of generality that renders them conclusive as to a specific issue.

Separability cannot mean wholly separate, as all orders bear some tangential

relationship to the underlying dispute, with the relationship of some

immediately-appealable issues quite more than tangential. And unreviewability

cannot simply mean “effectively unreviewable,” for any order can be reviewed on

appeal, and the lack of appeal for any order can impose immense and unjust

burdens on a wrongly-denied party.

One method of bringing some unity to the doctrine is to look to another

factor in the collateral order analysis, and recent Supreme Court decisions seem

to indicate that the focus of the inquiry is shifting to “importance.” Granted,

importance is nothing new to the doctrine. In the Court’s original formulation

of the collateral order doctrine, it stated that the doctrine covered those orders

“too important to be denied review.” Cohen, 337 U.S. at 546. The Court has also

employed importance as a trump card for distinguishing its prior decisions; as

the Court stated in United States v. MacDonald, 435 U.S. 850, 860 n.7 (1978),

there is value—to all but the most unusual litigant—in triumphing

before trial, rather than after it, regardless of the substance of the

winning claim. But this truism is not to be confused with the quite

distinct proposition that certain claims (because of the substance of

the rights entailed, rather than the advantage to a litigant in

winning his claim sooner) should be resolved before trial.

And as Justice Scalia stated in Lauro Lines, “The importance of the right

asserted has always been a significant part of our collateral order doctrine.” 490

U.S. at 502 (Scalia, J., concurring).

More recent decisions have increasingly looked to importance to clarify

what is a less than clear area of the law. In Digital Equipment, the defendant

argued that importance had no place in the collateral order analysis. 511 U.S.

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at 875. The Court acknowledged that one “may validly question whether

‘importance’ is a factor ‘beyond’ the three Cohen conditions or whether it is best

considered, as [the Court had] sometimes suggested it should be, in connection

with the second, ‘separability,’ requirement.” Id. at 878. But the Court

dismissed outright any suggestion that “‘importance’ is itself unimportant,” id.,

and indicated that importance informed both the second and third conditions of

the collateral order doctrine, id. at 878–89. Moreover, regarding its preference

for constitutional or statutory rights not to be tried, the Court stated that

“[w]hen a policy is embodied in a constitutional or statutory provision entitling

a party to immunity from suit (a rare form of protection), there is little room for

the judiciary to gainsay its ‘importance.’” Id. at 879. The Court’s opinion can

even be read to indicate that importance is actually the driving force behind the

collateral order doctrine, as it defined “‘important’ in Cohen’s sense[] as being

weightier than the societal interests advanced by the ordinary operation of final

judgment principles.” Id. That is, an order is immediately appealable when the

interests in permitting immediate appeals are sufficiently important to outweigh

the interests of finality in denying immediate appeals.

The Supreme Court later emphasized the centrality of importance to

determining appealability in Will. Recognizing that a multitude of orders

denying a right not to be tried were effectively unreviewable, the Court “combed”

its cases “for some further characteristic that merits appealability under Cohen.”

546 U.S. at 351. “That something further boil[ed] down to a judgment about the

value of the interests that would be lost through rigorous application of a final

judgment requirement.” Id. at 351–52 (quotation marks omitted). Thus,

according to the Will Court, “compelling public ends rooted in the separation of

powers” were behind the Nixon Court’s decision that a denial of absolute

executive immunity was immediately appealable; “threatened disruption of

governmental functions, and fear of inhibiting able people from exercising

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discretion in public service” drove the Mitchell Court’s decision that a denial of

qualified immunity was immediately appealable; the Puerto Rico Aqueduct Court

based its decision that a denial of Eleventh Amendment immunity was

immediately appealable not only on “the burdens of litigation,” but also on “the

need to ensure vindication of a State’s dignitary interests”; and, in determining

that a denial of double jeopardy immunity was immediately appealable, the

Abney Court looked to “the enormous prosecutorial power of the government to

subject an individual to embarrassment, expense and ordeal compelling him to

live in a continuing state of anxiety.” Id. at 352 (quotations marks, citations,

and alterations omitted). The Court continued,

In each case, some particular value of a high order was marshaled

in support of the interest in avoiding trial: honoring the separation

of powers, preserving the efficiency of government and the initiative

of its officials, respecting a State’s dignitary interests, and

mitigating the government’s advantage over the individual. That is,

it is not mere avoidance of a trial, but avoidance of a trial that

would imperil a substantial public interest, that counts when asking

whether an order is “effectively” unreviewable if review is to be left

until later.

Id. at 352–53 (emphasis added). The Court in Will ultimately held that the

denial of a judgment bar motion under the Federal Tort Claims Act was not an

immediately-appealable collateral order, as the order had “no claim to greater

importance than the typical defense of claim preclusion.” Id. at 355.

If importance is what is underlying the distinctions between which orders

are conclusive, separate, and unreviewable, then the Supreme Court seems to

be endorsing an increasingly pragmatic approach to the collateral order doctrine.

This is not to say that importance is a defining or controlling criterion of

appealability, or that the collateral order determination is wholly ad hoc or

unguided. Importance instead informs the three Cohen criteria as well as our

overall analysis. And in determining importance, we find guidance in the

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Supreme Court’s emphasis on the vindication of substantial public interests,

especially those with a constitutional or legislative basis.

In the present case, importance weighs profoundly in favor of

appealability. Anti-SLAPP statutes such as Article 971 aim to curb the chilling

effect of meritless tort suits on the exercise of First Amendment rights, and as

the Supreme Court stated in Elrod v. Burns, 427 U.S. 347, 373 (1976), “The loss

of First Amendment freedoms, for even minimal periods of time, unquestionably

constitutes irreparable injury.” Indeed, the Supreme Court has time and again

emphasized the importance of First Amendment rights. See, e.g., Curtis Publ’g

Co. v. Butts, 388 U.S. 130, 165 (1967) (Warren, C.J., concurring in the result)

(noting “the fundamental interests which the First Amendment was designed to

protect”). And as Judge Posner once acknowledged, “in free-speech cases[,]

interlocutory appeals sometimes are more freely allowed.” Union Carbide Corp.

v. U.S. Cutting Serv., Inc., 782 F.2d 710, 712 (7th Cir. 1986). Article 971 thus

provides for the avoidance of a trial that would imperil a substantial public

interest. Indeed, as Article 971 embodies a legislative determination that

parties should be immune from certain abusive tort claims that have the purpose

or effect of imperiling First Amendment rights, “there is little room for the

judiciary to gainsay its ‘importance.’” See Digital Equip., 511 U.S. at 879.

Considering all of the above, we hold that a district court’s denial of a

motion brought under an anti-SLAPP statute such as Article 971 is an

immediately-appealable collateral order. Therefore, we have jurisdiction over

the present appeal, and turn now to its merits.

B. Special Motion to Dismiss

As mentioned above, Article 971 operates through a shifting of burdens.

The party bringing the Article 971 motion “must make a prima facie showing

that the matter arises from an act in furtherance of his or her right of free

speech or the right of petition and in relation to a public issue.” Darden, 879 So.

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2d at 396. American Press has met this showing in the present case. First, as

evident on the face of Henry’s complaint, this dispute arises from a series of

news articles published by American Press, an exercise of the right of free

speech. Cf. id. at 396–97 (finding that a defendant met his prima facie case after

looking solely to the face of the complaint). Moreover, the articles concerned the

loss of a government contract and the investigation of an entity doing business

with the federal government and the State of Louisiana, both matters of public

interest. Cf. Starr, 978 So. 2d at 389; Darden, 879 So. 2d at 396. We therefore

conclude that American Press has met its prima facie showing.

After the defendant has met its prima facie showing, the plaintiff must

“demonstrate a probability of success on his or her own claim.” Darden, 879 So.

2d at 396. A plaintiff contesting an Article 971 motion must show a probability

that she will be able to establish all of the elements of her tort claim. Baxter,

847 So. 2d at 233. The elements of defamation under Louisiana law are: “(1) a

false and defamatory statement concerning another; (2) an unprivileged

publication to a third party; (3) fault (negligence or greater) on the part of the

publisher; and (4) resulting injury.” Kennedy v. Sheriff of E. Baton Rouge, 935

So. 2d 669, 674 (La. 2006). “In making its determination, the court shall

consider the pleadings and supporting and opposing affidavits stating the facts

upon which the liability or defense is based.” LA. CODE. CIV. PROC. art 971(A)(2);

see also Baxter, 847 So. 2d at 232.

“To establish a probability of prevailing on his claim, a plaintiff must state

and substantiate a legally sufficient claim. This is done through a prima facie

showing of facts sufficient to sustain a favorable judgment.” Baxter, 847 So. 2d

at 231–32. This requires more than that which is necessary to survive a normal

motion to dismiss, as “a defamation plaintiff must produce evidence of sufficient

quality and quantity to demonstrate that he will be able to meet his burden of

proof at trial.” Estiverne v. Times-Picayune, L.L.C., 950 So. 2d 858, 860 (La.

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App. 4th Cir. 2006) (quotation marks omitted). As one Louisiana court has

noted, establishing a probability of success is a “difficult burden.” Baxter, 847

So. 2d at 235. This burden is justified, however, as “the necessity of protecting

our constitutional rights of free speech and petition, particularly when exercised

in relation to public issues or matters of public interest, requires the imposition

of this burden on a plaintiff who brings a defamation action impacting these

rights.” Id.

The only evidence in the record with which we can make this

determination are the reprints of the newspaper articles and affidavits from

Henry, retired Air Force Lieutenant Colonel J.K. Switzer (“Switzer”), and

Henry’s attorney, David K. Anderson (“Anderson”). The parties primarily

dispute the standard of fault that applies to Henry’s claim. We need not delve

into this issue, however, for even if we assume that the most plaintiff-friendly

standard—negligence—applies, we still hold that Henry has not established a

probability of success on an essential element of his defamation claim.

Leaving aside the other elements, Henry has not established a probability

of successfully proving fault. The district court based its determination that

Henry had a probability of success in proving negligence on the statements in an

affidavit from Henry’s attorney, Anderson. Therein, Anderson stated that he

contacted American Press, provided them with information that the stories were

false, and also provided them with the contact information of Air Force

personnel who could confirm the stories’ falsity. Because American Press

purportedly had notice of the stories’ falsity but continued to publish them, the

district court found that Henry had satisfied his burden on this element.

On appeal, American Press points out that Anderson’s affidavit is evidence

only that Anderson contacted American Press; it provides no indication that

American Press did not follow up on the information Anderson provided. If

Henry wanted to show evidence of American Press’s negligence, he could have

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introduced an affidavit from the person Anderson told American Press to contact

indicating that American Press never contacted her. Indeed, the only way for

the district court to find evidence of negligence in Anderson’s affidavit is to

conclude that the stories were in fact false and that American Press would have

known that and would not have continued to publish them had it followed up on

the information that Anderson provided. But even assuming that the stories

were false, Anderson’s affidavit does not show that American Press acted

unreasonably in investigating and publishing the stories.

Granted, requiring such proof to establish a probability of success places

a high burden on a plaintiff bringing a defamation claim. As discussed above,

however, Louisiana courts have recognized that establishing a probability of

success is a “difficult burden,” Baxter, 847 So. 2d at 235, and this difficult burden

exists to prevent frivolous torts from chilling exercises of First Amendment

rights. If Henry had a meritorious case, he should have provided more evidence.

In line with Article 971, the district court could have allowed limited, special

discovery so that Henry could muster sufficient evidence to defeat American

Press’s motion. This ability, alongside Henry’s failure to request any such

discovery, undercuts any speculation that he did not have access to the evidence

necessary to prevail.

We therefore hold that Henry has not shown a probability of success on his

defamation claim. We reverse the district court’s conclusion on this issue and

render judgment dismissing Henry’s claim.

C. Attorney’s Fees

Article 971(B) provides, “In any action subject to Paragraph A of this

Article, a prevailing party on a special motion to strike shall be awarded

reasonable attorney fees and costs.” American Press requested fees and costs

pursuant to this provision in its Article 971 motion. As the district court denied

the motion, it never addressed this issue. Because we hold that the district court

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erred in denying American Press’s motion, we remand the case to the district

court to determine the fees and costs, if any, to which American Press is entitled.

IV. CONCLUSION

We first hold that a district court’s denial of an Article 971 motion is an

immediately-appealable collateral order. Thus, we have jurisdiction over this

interlocutory appeal. As to the merits, we REVERSE the district court’s denial

of American Press’s Article 971 motion, RENDER judgment DISMISSING

Henry’s defamation complaint, and REMAND the case to the district court for

a determination of fees and costs.

REVERSED, RENDERED, and REMANDED.

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