In April, 2020, we reported on the anticipated passage of Senate Bill S52, which sought to broaden the scope of New York’s anti-SLAPP laws. On July 22, 2020, the New York State Senate and Assembly passed the legislation, and it now awaits Governor Andrew Cuomo’s signature. If the Governor signs the legislation, it will go into effect immediately.
To recap, New York enacted its anti-SLAPP law in 2008. However, its application was quite narrow as compared to the anti-SLAPP statutes in other states, such as California, applying only to specific types of claims brought by a public applicant or permittee.
The new law expands coverage to “any communication in a place open to the public or a public forum in connection with an issue of public interest” or “any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition.”
The new law further provides that all proceedings, including discovery, hearings, and motions shall be stayed while the motion to dismiss is pending. It also makes an award of attorney fees and costs mandatory rather than permissive.
La Liberte v. Reid
At about the same time the New York state legislature passed the new anti-SLAPP statute, the Second Circuit Court of Appeals rendered a decision that California’s anti-SLAPP statute does not apply in federal court. This, of course, raises the question of whether New York’s anti-SLAPP law will be available in federal lawsuits in the Second Circuit where New York lies.
In La Liberte v. Reid, the Court determined that the district court’s partial application of the California anti-SLAPP statute conflicted with the Federal Rules of Civil Procedure 12 and 56 because it increases a plaintiff’s burden to overcome pretrial dismissal. Specifically, “[u]nder Rule 12(b)(6), the pleading burden is to allege ‘enough facts to state a claim to relief that is plausible on its face.’ [Citations] This ‘does not impose a probability requirement at the pleading stage…[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable.” [Citation] California’s anti-SLAPP statute, however, ‘abrogates that entitlement…by requiring the plaintiff to establish that success is not merely plausible but probable.’”
The Court further determined that the California statute conflicts with Rule 56, which permits summary judgment only if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. (Fed. R. Civ. P. 56(a).)” The Court explained, “[t]he Rule thus enables plaintiffs to proceed to trial by identifying any genuine dispute of material fact, whereas California’s anti-SLAPP statute “nullif[ies] 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.”
The Court concluded, that together, Rules 12 and 56 “express with unmistakable clarity that proof of probability of success on the merits is not required in federal courts to avoid pretrial dismissal,” and therefore, “California’s motion requires the plaintiff to make a showing that the federal Rules do not require.”
Finally, the Second Circuit considered the defendant’s argument that she is entitled to attorney’s fees under the anti-SLAPP statute based on the district court’s separate Rule 12(b)(6) dismissal. The Court disagreed, holding that because the anti-SLAPP procedures were not applicable in federal court and because the California statute specifically allows for the award of attorney fees only to a prevailing defendant on a special motion to strike, such fees would not be available where the dismissal was made under Federal Rule 12(b)(6).
Whether the various provisions of the new New York anti-SLAPP statute will apply in federal court remains to be seen. Notably, in Adelson v. Harris, 774 F.3d 803, 809 (2d Cir. 2014), the Second Circuit approved certain aspects of Nevada’s anti-SLAPP statute. The La Liberte Court, however, distinguished that holding from the case before it stating that “Nevada’s statute is quite different,” ‘[t]he Nevada statute does not establish a reasonable probability of success standard that must be met without discovery, like the California anti-SLAPP law.’” Rather, “the Nevada statute immunizes good faith communications—defined as communications that are truthful or…made without knowledge of…falsity—thereby effectively raising the substantive standard that applies to a defamation claim.” Thus, the Adelson Court determined that the effects of the Nevada anti-SLAPP law were substantive rather than procedural, and therefore, did not implicate the Erie doctrine, where a state procedural rule must give way to a federal procedure.
We expect both the New York Court of Appeals and the Second Circuit to weigh in on the various aspects of the new anti-SLAPP law in the years to come. We will continue to monitor these opinions as they apply in both state and federal court.
 2020 N.Y. Senate Bill No. 52-A/Assembly Bill No. 5991A (July 22, 2020).
 La Liberte v. Reid, No. 19-3574, 2020 WL 3980223 (2d Cir. July 15, 2020.)