If a defendant makes an Anti-SLAPP motion to strike founded on purely legal arguments, then the analysis is made under Fed. R. Civ. P. 8 and 12 standards; if it is a factual challenge, then the motion must be treated as though it were a motion for summary judgment and discovery must be permitted.  Here, the district court did not err in finding that the complaint satisfied Rule 8 and 12 standards thus establishing that plaintiff had a probability of success on the merits.  Also, it did not err in refusing to consider the factual sufficiency of the complaint at the pleading stage.  A two-judge concurrence calls on the Ninth Circuit to overrule its precedent permitting an interlocutory appeal from the denial of an Anti-SLAPP motion.

Ninth Circuit Court of Appeals (Gould, J.; Gould & Murguria, JJ., concurring); May 16, 2018; 2018 U.S. App. LEXIS 12649