The district court properly denied a defendant attorney’s Anti-SLAPP motion. The attorney had represented an insured as Cumis counsel in a prior action. The insurer sued the attorney claiming he had improperly retained settlement proceeds without offsetting them against the amounts he charged the insurer for his fees. Since the conduct out of which the suit arose was the post-litigation handling of the settlement funds rather than any litigation activity, the suit did not arise from protected activity and so the Anti-SLAPP motion was properly denied. This per curiam opinion follows prior 9th Circuit precedent in holding that the Court of Appeals has jurisdiction to hear an appeal from an order denying an Anti-SLAPP motion to strike the complaint, but two concurring judges call for en banc review, claiming that the 9th Circuit should follow the D.C. Circuit’s reasoning in Abbas v. Foreign Policy Group, LLC (D.C. Cir. 2015) 783 F.3d 1328, 1333 and hold that orders denying Anti-SLAPP motions are non-appealable.
Ninth Circuit Court of Appeals (per curiam; Kozinski & Gould, JJ., concurring); August 3, 2016; 2016 WL 4120689