In Sahs v. Loyola Univ. New Orleans, No. 25-30263 (5th Cir. Sept. 11, 2026), a Fifth Circuit panel repudiates prior dicta from a 2016 decision and holds that Louisiana’s anti-SLAPP law is a procedural law that, under Erie principles, does not apply in federal court. In a separate opinion, dubitante, one panelist challenges the panel’s appellate jurisdiction.
Anti-SLAPP laws (the acronym for “Strategic Lawsuit Against Public Participation”) are state provisions originating in the 1990s that entitled a litigant who challenged an action as infringing on free speech to obtain a quick ruling on the lawsuit’s merits. Some 30 states and the District of Columbia have such laws.
Plaintiff Sahs, a university student, brought a defamation action (along with other claims) against his school, Loyola University. Then, “Loyola filed a special motion to strike under Louisiana’s anti-SLAPP statute, Louisiana Code of Civil Procedure Article 971 (Article 971). The district court denied the motion on the ground that ‘Article 971 may not be applied in a suit in federal court based on diversity jurisdiction.’”
The defendant took an interlocutory appeal based on the collateral-order doctrine, supported by Henry v. Lake Charles Am. Press, LLC, 566 F.3d 164, 181 (5th Cir. 2009).
The Fifth Circuit affirms the district court.
The panel majority holds that there is appellate jurisdiction based on Henry. It allows, though, that “[o]ther circuit courts examining various states’ Anti-SLAPP statutes have come to differing conclusions as to whether there is interlocutory jurisdiction when a district court denies a motion to dismiss that involves such a statute.” The opinion notes differing rulings from the First, Second, Ninth, Tenth, and Eleventh Circuits. (A separate opinion, by Judge Oldham, would find no collateral-order jurisdiction on the theory that an anti-SLAPP motion is not separate from the merits of the action.)
Addressing the merits, the panel holds that notwithstanding the Henry decision’s prior suggestion that the “Louisiana law, including the nominally-procedural Article 971, governs this diversity case,” the Erie issue remained unresolved and it could thus reach the legal issue.
“Article 971 answers the same question as Federal Rules 12 and 56. A state rule and a federal rule ‘‘answer the same question’ when each specifies requirements for a case to proceed at the same stage of litigation,’ and ‘a state rule conflicts with a federal procedural rule when it imposes additional procedural requirements not found in the federal rules.’”
The panel interprets the state law as inconsistent with the procedural protections of the federal rules. “[T]he statute does not require the submission of [Rule 56] affidavits, and it provides for the stay of discovery while the motion to strike is pending. The statute does not fit neatly into either Rule 12 or 56 . . . . Rather, it conflicts with both by providing a different answer to the question of when a suit may be dismissed before trial, and it imposes additional requirements beyond those in the federal rules.”
Moreover, “Article 971’s burden-shifting framework conflicts with Rule 56. Rule 56 imposes on the movant the initial burden to show there is no genuine dispute of material fact and that it is entitled to judgment as a matter of law, but Article 971 requires only a prima facie showing that a movant’s activities were ‘constitutionally protected and in connection with a public issue.’ While the non-movant’s burden is the same under both standards, Article 971 requires less from the movant to force a plaintiff to their proof.”
Also, Article 971’s discovery stay provision conflicts with Fed. R. Civ. P. 56(d), allowing discovery on a summary judgment motion. “Most circuits have concluded that an anti-SLAPP statute’s limits on discovery conflict with Rule 56’s allowance of discovery, and Article 971’s discovery provision is no different.” In this respect, the Fifth Circuit differed from the First Circuit, which had held in Godin v. Schencks, 629 F.3d 79, 88-89 (1st Cir. 2010), that the discovery-limiting provision of Maine’s anti-SLAPP statute could be reconciled with Rule 56(d).
Accordingly, the panel majority holds that Article 971 thus conflicts with the federal rules and does not apply in federal court.
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