The Ninth Circuit, sitting en banc, recently revisited the appealability of district court denials of anti-SLAPP motions. For over two decades, immediate appeals of such denials were permitted. However, relying on the strict limits of the collateral order doctrine, the Ninth Circuit has reversed this stance, holding that anti-SLAPP denials are not immediately appealable in federal court. Consequently, where an anti-SLAPP motion is litigated in federal court, parties must now litigate to final judgment before seeking appellate review of an anti-SLAPP motion denial. Gopher Media LLC v. Melone, 154 F.4th 696 (9th Cir. 2025) (en banc). This rule stands in sharp contrast to California state court procedure, which permits immediate appeals from anti-SLAPP denials.
Beyond reshaping the timing of appellate review in federal court, Gopher Media also raises a broader question: whether California’s anti-SLAPP statute should apply in federal court at all under Erie. While the panel sidestepped this issue by assuming applicability, two concurring opinions addressed it directly. One argues that the statute creates substantive rights warranting application regardless of forum, while the other views it as a procedural device incompatible with the Federal Rules.
The Gopher Media opinion and its concurrences reshape expectations by directly impacting whether California’s anti-SLAPP regime should influence forum selection, the enforceability of forum-selection clauses, and the strategic consequences of litigating in federal versus state court. With denials of anti-SLAPP motions no longer permitting immediate federal appeal, cases can proceed without delay. This ruling benefits parties facing anti-SLAPP motions used as stalling tactics, marking a significant procedural shift by treating anti-SLAPP denials like any other pretrial ruling.
Although the doctrine remains unsettled, clients will be well served by counsel who, with the right strategy and a firm command of the landscape, can navigate it with clarity and confidence.
Gopher Media Background
The dispute in Gopher Media originated not from online speech, but from a parking conflict outside a small take-and-bake pizza shop in La Jolla. Plaintiffs Ajay Thakore and his digital marketing company, Gopher Media LLC, filed a lawsuit against Andrew Melone and his restaurant, American Pizza Manufacturing, alleging harassment, discrimination, and related misconduct linked to Thakore’s use of parking spaces outside the restaurant. In response, Melone and American Pizza Manufacturing counterclaimed for defamation, trade libel, unfair competition, and other relief, citing Thakore’s alleged efforts to manipulate Google and Yelp reviews and harass American Pizza Manufacturing’s employees and patrons. Thakore sought to strike these counterclaims under California’s anti-SLAPP statute, but the district court denied the motion, prompting Thakore to file an interlocutory appeal.
The Ninth Circuit agreed to hear the appeal en banc to address two key issues: (1) the applicability of California’s anti-SLAPP statute in federal court; and (2) whether denials of anti-SLAPP motions are immediately appealable under the collateral order doctrine.
The Ninth Circuit Analysis
The Ninth Circuit chose not to resolve the foundational question of whether the anti-SLAPP statute applies in federal court. However, the court held that the denial of an anti-SLAPP motion is not immediately appealable in federal court. This decision is based on the collateral order doctrine, which is the sole basis for interlocutory appeals under federal law.
Importance of the Collateral Order Doctrine
Federal appellate courts ordinarily review only final decisions. Gopher Media, 154 F.4th at 701. Interlocutory appeals are generally disfavored as they can delay proceedings and encourage piecemeal litigation. The Supreme Court has cautioned against expanding interlocutory review. See Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 430 (1985); Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 498–99 (1989).
The collateral order doctrine is a narrow exception, allowing immediate appeals only when deferring review would effectively forfeit an important right. To qualify, an order must: (1) conclusively determine the disputed question; (2) resolve an important question separate from the merits; and (3) be effectively unreviewable on appeal from a final judgment. Gopher Media, 154 F.4th at 701.
Why the Anti-SLAPP Denial Failed the Test
The Ninth Circuit held that denials of anti-SLAPP motions do not meet the second and third prongs of the collateral order doctrine and thus cannot be appealed before final judgment. First, these orders are intertwined with the merits, as they involve evaluating protected activity and the plaintiff’s likelihood of prevailing, which combines factual and legal questions. Id. at 703. Second, such denials are fully reviewable after final judgment, and delaying review does not imperil the interest enough to justify immediate appeal. Id.
The Court’s Stance on Anti-SLAPP in Federal Court
While the Ninth Circuit did not decide the threshold issue of applicability of anti-SLAPP in federal court, two concurring opinions questioned whether California’s anti-SLAPP statute should be applied there at all.
The Concurring Opinions
In their concurring opinions, Judges Bennett and Bress agreed that anti-SLAPP denials are not immediately appealable. However, they diverged on whether California’s anti-SLAPP statute should apply in federal court in the first place—a disagreement rooted in foundational Erie doctrine questions, leading them to opposite conclusions about the statute’s role in federal practice.
Judge Bennett argued that California’s anti-SLAPP special-motion and attorney-fee-shifting provision create substantive rights, with no federal rule directly conflicting with these rights. Therefore, he concluded that the anti-SLAPP provisions should apply in federal court under Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), and its progeny. In contrast, Judge Bress contended that the en banc court should have addressed the federal-court application issue, aligning with the majority view among other circuits that state anti-SLAPP statutes are procedural devices incompatible with the Federal Rules.
These concurrences reveal more than a doctrinal split; they highlight two conflicting theories on the operation of state anti-SLAPP statutes in federal court and the scope of Erie. One approach seeks to preserve anti-SLAPP as a substantive protection, while the other aims to exclude it from federal practice entirely. The resolution of this issue will depend on future Ninth Circuit panels and potentially the Supreme Court.
Practice Tips
The Ninth Circuit’s ruling in Gopher Media materially alters timing, leverage, and risk assessments for cases implicating speech-related claims. Absent interlocutory review, parties must generally proceed through discovery and merits adjudication before appellate relief is available. Below are key considerations for plaintiffs and defendants.
- Forum Selection
- For Defendants: Where an anti-SLAPP motion may be appropriate, consider remaining in state court to preserve the possibility of an immediate appeal if the motion is denied.
- For Plaintiffs: Where viable, filing in federal court may avoid interlocutory appeals and reduce delay, allowing the case to proceed more efficiently toward trial.
- Removal Risks: Carefully evaluate the likelihood of removal, with particular attention to federal-question jurisdiction and diversity requirements that could shift the case to federal court.
- Litigation Strategy
- Motion Practice: Deploy Rule 12(b)(6) and Rule 56 motions strategically alongside anti-SLAPP motions, as adverse rulings on each remain reviewable on appeal following final judgment.
- Discovery Management: Seek tailored discovery stays where appropriate (state and federal rules differ on whether discovery is automatically stayed after an anti-SLAPP motion), and, if a stay is denied, propose phased or issue-focused discovery to control scope and cost.
- Budgeting and Financial Management
- Budget Planning: Update litigation budgets to reflect a full merits-based path through discovery and trial, without assuming the availability or delay of an interlocutory appeal in federal court.
- Settlement Considerations
- Cost-Shifting: Continue to pursue fee-shifting under applicable anti-SLAPP provisions and assess how deferred fee recovery may affect settlement leverage.
- Timing: Identify strategic inflection points for settlement discussions, including after dispositive motion rulings or completion of targeted discovery phases.
- Record Building
- Preserving Issues for Appeal: Develop a comprehensive record by clearly presenting and supporting all legal and factual arguments to position the case for appellate review after final judgment.
In conclusion, with no immediate appeals for anti-SLAPP denials, focus on strategic forum selection, discovery management, and building a strong record for eventual appeal.
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The KF&C team will continue to monitor these procedural changes in the anti-SLAPP landscape and their implications; we will post any updates on the KF&C California Law Blog.
If you have questions or comments on the content of this post, please email Mike Kibler at [email protected], Zien Halwani at [email protected], Jesse Mentz at [email protected], or Regina Michelle Matthews at [email protected].
