711 F.3d 1136
9th Cir.2013Background
- Silverman, a California attorney, was sued on TVPA, RICO, fiduciary duty, and legal malpractice theories for procuring H-1B visas for Filipino teachers recruited in Louisiana.
- Plaintiffs alleged Silverman aided human trafficking and violated TVPA, and that he breached duties and committed malpractice through his representation.
- Silverman moved to strike state-law claims under California’s anti-SLAPP statute and invoked Noerr-Pennington immunity against all claims.
- The district court denied Silverman’s anti-SLAPP motion; Silverman appealed the denial of Noerr-Pennington immunity from liability.
- The Ninth Circuit held it has jurisdiction to review the anti-SLAPP denial but concluded the Noerr-Pennington denial is not immediately appealable collateral order.
- The court sua sponte dismissed the Noerr-Pennington appeal for lack of appellate jurisdiction, preserving consideration of the anti-SLAPP ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is denial of Noerr-Pennington immunity immediately appealable? | Silverman argues collateral-order review is proper for immunity denial. | Plaintiffs contend the issue is merits-related and not appealable as a collateral order. | Not immediately appealable. |
Key Cases Cited
- DC Comics v. Pac. Pictures Corp., 706 F.3d 1009 (9th Cir. 2013) (jurisdiction to review anti-SLAPP denial on interlocutory appeal)
- Hinshaw v. Smith, 436 F.3d 997 (8th Cir. 2006) (Noerr-Pennington denial not collateral-order eligible)
- Acoustic Sys., Inc. v. Wenger Corp., 207 F.3d 287 (5th Cir. 2000) (Noerr-Pennington collateral-order analysis)
- We, Inc. v. City of Philadelphia, 174 F.3d 322 (3d Cir. 1999) (Noerr-Pennington related to merits and appealability)
- Segni v. Commercial Office of Spain, 816 F.2d 344 (7th Cir. 1987) (Noerr-Pennington as interpretive/merits-related defense)
- Will v. Hallock, 546 U.S. 345 (2006) (Cohen collateral-order test elements)
- Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949) (collateral-order doctrine origin)
- Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863 (1994) (limits of collateral-order review; pretrial rights not per se appealable)
- Sosa v. DIRECTV, Inc., 437 F.3d 923 (9th Cir. 2006) (Noerr-Pennington applies to statutory contexts and rights to petition)
- Perry v. Schwarzenegger, 591 F.3d 1126 (9th Cir. 2009) (no special status for constitutional rights in collateral-order analysis)