11th Circuit Says Anti-SLAPP Law Doesn't Belong in Federal Court

The U.S. District Court for the Northern District of Georgia, where CNN is based, had refused to dismiss the lawsuit brought by Davide Carbone, the former CEO of St. Mary's Medical Center in West Palm Beach, FL, over a 2015 CNN investigation titled “Secret Deaths: CNN Finds High Surgical Death Rate for Children at a Florida Hospital.” The investigation asserted that St. Mary's mortality rate for pediatric cardiac surgery was three times the national average — a figure that Carbone claimed was a misleading “manipulation” of the numbers that ultimately cost him his job and reputation.

St. Mary's pediatric cardiac surgery program shut down and Carbone was force to resign in the wake of CNN's reports. Carbone seeks $30 million in damages from CNN.

The district court found that Carbone's lawyers, L. Lin Wood and partner Jonathan Grunberg of L. Lin Wood Law, and Stacey Evans, a partner in the Atlanta office of Wargo French, had presented enough evidence to suggest that CNN “was acting recklessly with regard to the accuracy of its reporting.”

Wood said: “In recent years, anti-SLAPP statutes have been abused by media defendants in defamation cases to impose demanding standards of proof at an early stage of litigation while denying plaintiffs the development of a full factual record through discovery.” (CNN lead counsel Charles Tobin of Ballard Spahr in Washington, DC, could not be reached for comment by telephone or email when this article was written. David Vigilante, senior vice-president of legal for CNN, also could not be reached.)

Georgia's anti-SLAPP statute requires, for a defamation case to go forward, that plaintiffs must demonstrate prior to any discovery that they are likely to prevail. That mandate sets up a conflict with rules of the federal judiciary that govern the adjudication of pending civil cases, Circuit Judge Pryor wrote.

Federal rules “express with unmistakable clarity that proof of probability of success on the merits is not required in federal courts to avoid pretrial dismissal, and that the evidentiary sufficiency of a claim should not be tested before discovery,” Judge Pryor continued. “But the relevant provisions of the Georgia anti-SLAPP statute explicitly require proof of a probability of success on the merits without the benefit of discovery. The result is a 'direct collision' between the federal rules and the motion-to-strike provision of the Georgia statute.”

The judiciary's rules give a plaintiff “a right to proceed to trial if he proves the existence of a genuine dispute of material fact,” Judge Pryor wrote. “The anti-SLAPP statute would nullify that entitlement by requiring the plaintiff to prove that it is likely, and not merely possible, that a reasonable jury would find in his favor and to do so while relying exclusively on evidence he was able to obtain without discovery.”

The appeals court noted CNN relied on conflicting decisions in other circuits, including the First and the Ninth, to promote their argument that a state anti-SLAPP law trumped federal rules.

But the Eleventh Circuit suggested some of those decisions assume state anti-SLAPP statutes apply in federal court with virtually no analysis. “We are not persuaded by the reasoning of these decisions,” Circuit Judge Pryor said.

Judge Pryor also noted that the Eleventh Circuit's opinion “is a pure question of law that we may resolve without touching on the legal or factual merits of Carbone's complaint.”

[Editor's Note: In the Ninth Circuit case, Makaeff v. Trump University LLC, 715 F.3d 254 (9th Cir. 2013), the appeals court allowed an anti-SLAPP motion to proceed under California's anti-SLAPP statute, Calif. Civ. Code §425.16. But then-Chief Judge Alex Kozinsky nevertheless said in a concurrence that the state statute “cuts an ugly gash through” the “integrated program of pre-trial, trial and post-trial procedures” set out in the Federal Rules of Civil Procedure.” He added: “Federal 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.”]

*****

Robin McDonald is a reporter for The Daily Report, an Atlanta-based ALM sibling of Entertainment Law & Finance. She can be reached at [email protected].