Tanedo v. East Baton Rouge Parish Sch. Bd.

Under the Noerr-Pennington doctrine a denial of a motion for immunity from liability cannot be instantly appealed.

A group of Filipino teachers recruited to work in Louisiana sued Robert Silverman and his firm, Silverman & Associates, Inc. (“Silverman”), alleging that Silverman violated the Trafficking Victims Protection Act (“TVPA”), the Racketeer Influenced and Corrupt Organizations Act (“RICO”), and committed legal malpractice by getting illegal work visas for the teachers. Silverman moved for a motion to strike the second amended complaint of the teachers, but his motion was denied. Silverman then brought this interlocutory appeal alleging that the teachers’ claim violated the Anti-SLAPP statute in California and sought to invoke Noerr-Pennington immunity against all the teachers’ claims. The Ninth Circuit held that the Noerr-Pennington doctrine does not protect a defendant from trial, but instead is a protection from liability and therefore is reviewable only on appeal after the final judgment has been issued. The panel applied the collateral order doctrine from Cohen v. Beneficial Industrial Loan Corp., requiring that in order for an order to be immediately appellable the order must: (1) “conclusively determine the disputed question”; (2) “resolve an important issue completely separate from the merits of the action”; and (3) be unreviewable if the final judgment were to be appealed. The panel found that Silverman’s Noerr-Pennington defense failed the second prong of the collateral order doctrine. If the Noerr-Pennington defense were to be ruled on by the panel, it would be determining the merits of the teachers’ action still to be decided by the district court. Furthermore, the denial of Silverman’s motion was not “inextricably intertwined” or was not “necessary to ensure meaningful review of” the Anti-SLAPP issue which was a proper interlocutory appeal for this panel to hear. The Anti-SLAPP motion to strike was addressed by the panel in a separate ruling. DISMISSED.