Mark Clark - February 24, 2017 - Uncategorized
Previously we had written about the strategy of selecting a forum to file a defamation suit based on whether a given state had an anti-SLAPP statute. A SLAPP lawsuit is technically a strategic lawsuit against public participation where the Plaintiff ostensibly brings the lawsuit to silence the speaker without a solid basis for a legitimate defamation claim. An anti-SLAPP statute typically allows a Defendant speaker to file an anti-SLAPP motion early in the case if the speaker has written or spoken on a matter of public concern shifting the burden to the Plaintiff to establish a probability of prevailing on the merits of the claim or face dismissal and sanctions for filing the lawsuit.
While the 9th Circuit covering some western states including California have ruled that state anti-SLAPP statutes are available in federal court, Federal Courts in other areas of the country have taken a contrary position and ruled that a state anti-SLAPP states imposes an impermissible hurdle to a plaintiff in federal court whose rules of civil procedure only require a plausability rather than a probability of prevailing to withstand an initial motion to dismiss the case, making a plaintiff’s road into discovery in the case much easier than in state courts or Federal courts that recognize the applicability of state anti-SLAPP statutes in Federal Courts. A recent federal court case in Georgia in the case of Davide Carbone v Cable News Network (CNN) has determined the state’s anti-SLAPP statute cannot be used to prevent the plaintiff in that case from proceeding with the case. Carbone was the chief executive of a Florida hospital when CNN reported a higher than average infant mortality rate for open heart surgeries, resulting in Carbone’s forced resignation and subsequent defamation suit against CNN.
Defamation plaintiff’s may now have another avenue that would provide for the avoidance of state anti-SLAPP in selecting a federal court forum where anti-SLAPP standards that would require a probability of prevailing will not be applied.