Ninth Circuit Reverses Course on Anti-SLAPP Appeals

Yesterday, the Ninth Circuit Court of Appeals changed its longstanding precedent on whether a district court’s denial of a motion to strike under California’s anti-SLAPP statute can be immediately appealed under the collateral order doctrine.
California’s anti-SLAPP statute allows defendants to seek early dismissal of meritless lawsuits that challenge the exercise of their First Amendment rights. When deciding an anti-SLAPP motion, courts consider (1) whether the challenged claim arises from protected conduct, and (2) whether plaintiff has established a probability of success on the merits. See Cal. Civ. Proc. Code § 425.16(b)(1).

In 2003, the Ninth Circuit held in Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003), that a district court’s denial of an anti-SLAPP motion is immediately appealable under the collateral order doctrine, because such an order resolves a question separate from the underlying merits of a lawsuit.

Yesterday, an en banc panel of 11 judges unanimously overruled Batzel, holding that “orders denying anti-SLAPP motions under California’s statute do not resolve questions ‘completely separate from the merits’” nor are they “effectively unreviewable on appeal from a final judgment.” Gopher Media LLC v. Melone, --- F.4th ----, 2025 WL 2858761, at *4-5 (9th Cir. Oct. 9, 2025). Writing for the majority, Chief Judge Murguia explained that “our experience with anti-SLAPP cases over the ensuing two decades [after Batzel] has shown that the questions that must be answered to resolve an anti-SLAPP motion are in fact ‘inextricably intertwined with the merits of the litigation.’” Id. at *1 (citation omitted).

The majority acknowledged that “some important interest may be lost if a defendant must wait to appeal a final judgment in an anti-SLAPP case,” including “potential unfairness of having to defend a meritless action all the way through trial,” but concluded that “this lost interest does not render the decision ‘effectively unreviewable’ for purposes of the collateral order doctrine[.]” Id. at *5.

The majority expressly declined to reconsider whether California’s anti-SLAPP statute should apply in federal court at all. Id. at *1 n.2. In dueling concurrences, however, six judges on the en banc panel debated that question. Judges Mark Bennett and Consuelo Callahan opined that California’s anti-SLAPP statute should apply in federal court because it creates a substantive right that is neither controlled nor contradicted by federal rule. Id. at *6. By contrast, Judges Daniel Bress, Daniel Collins, Kenneth Lee, and Patrick Bumatay reasoned that California’s anti-SLAPP statute is a procedural device that irreconcilably conflicts with the Federal Rules of Civil Procedure. These judges urged that the en banc court should have joined the Second, Fifth, Tenth, Eleventh and D.C. Circuits, and declined to apply state anti-SLAPP statutes in federal court. Id. at *10, *19–20.

The Ninth Circuit’s decision could have far-reaching effects—among them, incentivizing zealous plaintiffs to file in federal rather than state court, and creating pressure for defendants to settle meritless cases to avoid the time and expense of protracted litigation.

O’Melveny will continue to monitor further developments on these issues. Please contact the attorneys listed on this Client Alert or your O’Melveny counsel if you have any questions.

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Cassandra Seto, an O’Melveny partner licensed to practice law in California; Matt Kline, an O’Melveny partner licensed to practice law in California; Molly M. Lens, an O’Melveny partner licensed to practice law in California and New York; Anton Metlitsky, an O’Melveny partner licensed to practice law in the District of Columbia and New York; and Anwar Graves, an O’Melveny partner licensed to practice law in the District of Columbia and New York, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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