Appellate Insights

In the California state courts, every order granting or denying an anti-SLAPP motion is immediately appealable. But anti-SLAPP appealability is more of a minefield in the Ninth Circuit. There, an anti-SLAPP ruling is appealable only if it satisfies the requirements of the “collateral order doctrine” – that is, if it (1) conclusively determines the disputed question (which is whether the anti-SLAPP statute bars the challenged claims), (2) resolves an issue completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a final judgment.

Under this test, different types of anti-SLAPP rulings fare differently:

• An order denying an anti-SLAPP motion is appealable.

• An order granting an anti-SLAPP motion with leave to amend is not appealable.

• An order striking all claims against one defendant, but not against another defendant, is not appealable.

The practical message: Examine any federal district court anti-SLAPP ruling carefully to determine whether it satisfies the collateral order doctrine – and if the answer is not obvious, consult an appellate specialist.