Metabolic Research v. Ferrell

“A pretrial special motion to dismiss under Nevada’s anti-SLAPP statute” is not an immediately appealable collateral order because the order is not “effectively unreviewable on appeal from a final judgment” and does not jeopardize a substantial public interest.

Scott Ferrell, a California attorney, appeals the Nevada district courts denial of “a pretrial special motion to dismiss under Nevada’s anti-SLAPP statute”. Ferrell had sent demand letters to General Nutrition Centers (GNC) to its address in Pennsylvania and Metabolic Research Inc. in Nevada to notify them regarding purported violations of California Civil Code sec 1750-1756 and the “California Consumer Legal Remedies Act” for falsely advertising benefits of a natural fitness supplement. Ferrell offered GNC and Metabolic an injunction in exchange for ceasing further action. However, in November 2009, Metabolic filed suit in Nevada against Ferrell for extortion and racketeering. Ferrell responded by filing “a special motion to dismiss based upon Nevada’s anti-SLAPP statute”. The Ninth Circuit held that a special motion to dismiss does not satisfy as an immediately appealable collateral order. Under the three-prong test in Cohen v. Beneficial Industrial Loan Corp. the order first must be conclusive. Second, the order must “resolve an important question separate from the merits”. Third the order must be “effectively unreviewable on appeal from a final judgment” .The Ninth Circuit noted that it was unnecessary to look at the first two prongs because the motion failed to meet the “effectively unreviewable” prong which looks at whether delaying the appeal “would imperil a substantial public interest”. The Ninth Circuit held that the aim of Nevada’s anti-SLAPP statute in protecting citizens First Amendment rights could be furthered without immediate appeal. Further, the Ninth Circuit held that that immediate appeal was not necessary because Nevada citizens are not immune from trial under the anti-SLAPP legislation. The Ninth Circuit held that Nevada only provides a general statement of appealability and does not “expressly provide for an immediate right to appeal”. The Ninth Circuit also noted that there are alternatives to the collateral order to remedy small anti-SLAPP motions. DISMISSED.