Mary, the Newsham v. Lockheed Missles case you cite only allows the anti-SLAPP provision to be applied to state causes of action in a federal court, not to federal claims like the Lanham Act.
For example, say I sue you in federal court for defamation. Newsham provides precedent for you to argue that the state anti-SLAPP provision should be applied to your case because defamation is a state cause of action (i.e. subject to the interpretation of the laws of the state in which you were sued). Now, suppose I tack on a Lanham Act violation. The Lanham Act was passed by Congress so it's a federal law. All the Newsham causes of action were state based and thus Newsham technically can't be applied to the federal charges, meaning you are out of luck trying to get the entire case tossed out via the anti-SLAPP provision.
In Newsham, the court ruled that if they didn't allow the anti-SLAPP provision to apply to state causes of action in a federal court then it would encourage forum shopping, i.e. it would give incentive for companies to file their SLAPP suits in a federal court to avoid a state anti-SLAPP provision. The legal loophole I was pointing out is that by tacking on a bogus Lanham Act claim companies are able to get around the Newsham ruling. Yes, logic would dictate that, if challenged, a Court of Appeals would use the same forum shopping logic to also allow the anti-SLAPP provision to apply to federal claims, but, to my knowledge, no such appeal has been undertaken and thus the loophole remains.
The reason I know all about this is because when Business Wire sued us they used this exact argument -- successfully -- to thwart our intitial effort to have the entire case covered under the anti-SLAPP provision. Our next step was to go the Court of Appeals and present the exact same forum shopping arguments Lockheed did in the Newsham case. We figured this would have probably cost $50,000+ to do but since my insurance company said they'd cover it then so what. Obviously Business Wire and my insurance company felt differently. For both of them money was very much an issue. So we simply said that if our conditions were met (i.e. all charges dropped, no apologies, site stays up, no sealed records, etc.) then whatever those two decided to do about the money part was fine by us. The end result was that we got every single thing we wanted, settled, and thus never did get the chance to establish precedent. This is why I'm hoping perhaps you will.
- Jeff |
