12-108-cv
Liberty Synergistics Inc. v. Microflo Ltd.



                                      UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                                  August Term, 2012

(Argued: February 1, 2013                                                           Decided: May 31, 2013)

                                                Docket No. 12-108-cv


                  _______________________________________________________________


                                 LIBERTY SYNERGISTICS INC., a California corporation,

                                                    Plaintiff-Appellee,


                                                            v.


                    MICROFLO LTD., an inactive New York Corporation, EDWARD MALKIN,
                       an individual, and ECOTECH LTD., a Cayman Islands Company,

                                                 Defendants-Appellants.*


                  _______________________________________________________________


Before: WALKER, CABRANES, and WESLEY, Circuit Judges.

            In this suit—which was originally filed in state court in California, later removed to federal

court in California, and then voluntarily transferred to the United States District Court for the

Eastern District of New York—the District Court (Sandra J. Feuerstein, Judge) denied the

defendants’ motion to dismiss the suit pursuant to California’s anti-Strategic Litigation Against

Public Participation (“anti-SLAPP”) rule, see CAL. CIV. PROC. CODE § 425.16, on the basis that New

York law, not California law, governs the plaintiff’s malicious prosecution claim. In short, the

     *   The Clerk of Court is directed to amend the caption as shown above.

                                                             1
District Court held that California’s anti-SLAPP rule became inapplicable after the suit was

transferred to New York. The questions presented in this appeal are: (1) whether the District

Court’s decision with respect to the inapplicability of California’s anti-SLAPP rule is a “collateral

order” reviewable on an interlocutory appeal under 28 U.S.C. § 1291; and (2) whether the District

Court erred by concluding that California’s anti-SLAPP rule is inapplicable in light of its

determination that New York law, instead of California law, governs the plaintiff’s malicious

prosecution claim.

        With respect to the first question, we hold that the District Court’s decision constitutes an

immediately appealable collateral order. With respect to the second question, we hold that the

District Court erred in concluding that California’s anti-SLAPP rule cannot apply to a claim

transferred from a California federal court to a New York federal court and governed, under the Erie

doctrine, by New York law. In particular, the District Court conflated the relevant state choice-of-

law question with the separate federal choice-of-law inquiry under Erie Railroad Co. v. Tompkins, 

(1938). State rules that are considered “procedural” under state law may still apply in federal

diversity suits if those rules are considered “substantive” under federal law pursuant to Erie. Because

the plaintiff initially brought this suit in California and then voluntarily transferred it from a

California federal court to the Eastern District of New York pursuant to 28 U.S.C. § 1404(a), and

because a California state court would have applied California’s anti-SLAPP rule as a procedural

matter, the rule is still potentially available following the transfer. See Ferens v. John Deere Co., 

, 531 (1990).

        For these reasons, Liberty’s motion to dismiss this appeal for lack of appellate jurisdiction is

denied; the order of the District Court denying the defendants’ motion to dismiss pursuant to

California’s anti-SLAPP rule is vacated; and the cause is remanded to the District Court for further




                                                      2
consideration of the motion to dismiss, and for such further proceedings as may be appropriate in

the circumstances.

                                                DENNIS H. SABOURIN (Eugenie F. Temmler, on the brief),
                                                      Rabner, Allcorn, Baumgart & Ben-Asher, P.C.,
                                                      Montclair, NJ, for Defendants-Appellants.

                                                TRACY GRAVES WOLF (Peter T. Shapiro, on the brief), Lewis
                                                      Brisbois Bisgaard & Smith LLP, Dallas, TX, and New
                                                      York, NY; Harold A. Ducote, Jr., Ducote Law
                                                      Corporation, PC, Costa Mesa, CA, for Plaintiff-Appellee.


JOSÉ A. CABRANES, Circuit Judge:

         On its face, this appeal involves a somewhat technical issue of federal appellate procedure—

namely, whether we have jurisdiction under the “collateral order” doctrine to consider the merits of

this interlocutory appeal. But a similarly difficult inquiry, which also bears on our analysis of the

jurisdictional question, is whether the District Court properly applied governing choice-of-law

principles under the Rules of Decision Act, see 28 U.S.C. § 1652,1 as interpreted in Erie Railroad Co. v.

Tompkins, 

(1938) (“Erie”), and its progeny.2

         The tricky choice-of-law questions raised in this appeal have arisen because this case has

progressed through three different venues. The suit, which alleges malicious prosecution with


     1 The Rules of Decision Act, which governs in diversity cases, provides: “The laws of the several states, except

where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be
regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.” 28 U.S.C.
§ 1652.

    2 As students of federal civil procedure well recall, the holding of Erie was that a federal court sitting in diversity
must apply substantive law supplied not only by state legislation but also by state common law. In the legal lexicon,
however, Erie has become synonymous with the familiar aphorism that “federal courts sitting in diversity apply state
substantive law and federal procedural law.” Gasperini v. Ctr. for Humanities, Inc., 

, 427 (1996). Throughout
our opinion, we refer to “Erie” and the “Erie doctrine” in this broader and more familiar sense. In doing so, we are
mindful of the legal-realist view, famously articulated by Professor Llewellyn, that “[t]he differentiation between
substantive law and adjective law is an illusion.” KARL N. LLEWELLYN, THE BRAMBLE BUSH 82–83 (1930); see also, e.g.,
Larry D. Kramer, Choice of Law in Complex Litigation, 71 N.Y.U. L. REV. 547, 569 (1996) (“It is, of course, every procedure
teacher’s favorite truism that there is no bright line distinguishing substance from procedure, that the meanings of these
terms shade into one another by degrees and vary from context to context.”). As Professor Llewellyn recognized,
however, this distinction “must be taken account of.” 

.


                                                             3
respect to prior litigation in federal court in New York between the same parties, was originally filed

in California state court, later removed to federal court in California, and then voluntarily transferred

to the United States District Court for the Eastern District of New York pursuant to 28 U.S.C.

§ 1404(a).3 While the suit was pending in federal court in California, the defendants filed a motion

to dismiss under California’s anti-Strategic Litigation Against Public Participation (“anti-SLAPP”)

rule, see CAL. CIV. PROC. CODE § 425.16,4 arguing that the plaintiff’s malicious prosecution claim was

meritless and intended to inhibit the defendants’ constitutionally protected conduct in bringing the

suit. After the case was transferred, the United States District Court for the Eastern District of New

York (Sandra J. Feuerstein, Judge) denied the defendants’ pending motion to dismiss, which was

based on the purported immunity provided by California’s anti-SLAPP rule. The Court concluded

that because New York law, not California law, governs the substance of the plaintiff’s cause of

action, and because the suit was transferred to a federal court in New York, California’s anti-SLAPP

rule did not apply.

           The questions presented in this appeal are: (1) whether the District Court’s decision

regarding the inapplicability of California’s anti-SLAPP rule is a “collateral order” reviewable on an

     3 Title 28 U.S.C. § 1404(a) provides: “For the convenience of parties and witnesses, in the interest of justice, a

district court may transfer any civil action to any other district or division where it might have been brought or to any
district or division to which all parties have consented.”
    4   The Ninth Circuit has summarized California’s anti-SLAPP rule as follows:
           California law provides for pre-trial dismissal of . . . lawsuits that masquerade as ordinary lawsuits but
           are brought to deter common citizens from exercising their political or legal rights or to punish them
           for doing so. The anti-SLAPP statute was enacted to allow for early dismissal of meritless first
           amendment cases aimed at chilling expression through costly, time-consuming litigation. If the
           defendant files an anti-SLAPP motion to strike, all discovery proceedings are stayed. See § 425.16(g).
           A court may, however, permit specified discovery “on noticed motion and for good cause shown.”
           

prevail on an anti-SLAPP motion, the defendant is required to make a prima facie
           showing that the plaintiff’s suit arises from an act by the defendant made in connection with a public
           issue in furtherance of the defendant’s right to free speech under the United States or California
           Constitution. The burden then shifts to the plaintiff to establish a reasonable probability that the
           plaintiff will prevail on his or her defamation claim. The plaintiff must demonstrate that the
           complaint is legally sufficient and supported by a prima facie showing of facts to sustain a favorable
           judgment if the evidence submitted by plaintiff is credited.
Batzel v. Smith, 

, 1023–24 (9th Cir. 2003) (alterations, internal citations, some internal quotation marks, and
paragraph breaks omitted).

                                                               4
interlocutory appeal under 28 U.S.C. § 1291; and (2) whether the District Court erred by concluding

that California’s anti-SLAPP rule is inapplicable in light of its determination that New York law,

instead of California law, governs the plaintiff’s malicious prosecution claim.

        With respect to the first question, we hold that the District Court’s denial of the defendants’

motion to dismiss under California’s anti-SLAPP rule constitutes an immediately appealable

collateral order because it (1) conclusively determined the disputed issue; (2) resolved an important

question that is completely separate from the merits of the action; and (3) would be effectively

unreviewable in a later appeal. See Will v. Hallock, 

, 349 (2006).

        With respect to the second question, we hold that the District Court erred in concluding that

California’s anti-SLAPP rule cannot apply to a claim transferred from a California federal court to a

New York federal court and governed, under the Erie doctrine, by New York law. In particular, the

District Court conflated the relevant state choice-of-law question with the separate federal choice-of-

law inquiry under Erie. State rules that are considered “procedural” under state law may still apply in

federal diversity suits if those rules are considered “substantive” under federal law pursuant to Erie.

Because the plaintiff initially brought this suit in California and then voluntarily transferred it to the

Eastern District of New York, and because a California state court would have applied California’s

anti-SLAPP rule as a procedural matter, the aspects of California’s anti-SLAPP rule considered

substantive by federal law continue to apply in this case, notwithstanding that the case is now being

heard in New York, and notwithstanding that the cause of action is otherwise governed by

substantive New York law. See Ferens v. John Deere Co., 

, 531 (1990).

        For these reasons, the District Court’s order denying the defendants’ motion to dismiss

pursuant to California’s anti-SLAPP rule is vacated, and the cause is remanded to the District Court

for further consideration of the motion to dismiss, and for such further proceedings as may be

appropriate in the circumstances.


                                                     5
                                                  BACKGROUND

         The plaintiff-appellee in this case, Liberty Synergistics Inc. (“Liberty”), was the defendant in

an earlier, now-concluded round of litigation between the same parties in the Eastern District of

New York. Thereafter, Liberty filed this malicious prosecution suit in California state court against

defendants-appellants Microflo Ltd., Edward Malkin, and Ecotech Ltd. (jointly, “Microflo”).

Liberty filed its complaint in California state court on September 17, 2010, alleging that Microflo, in

pursuing the previous litigation against Liberty, “undertook no reasonable investigation to verify any

of the facts asserted in the[ ] complaint, [and] maintain[ed] the action against Liberty out of motives

grounded in spite, malice, and with a vexatious and malicious intent, in complete and utter disregard

for the rights of Liberty and others . . . .” Complaint ¶ 27. Microflo removed the case to the Central

District of California on November 30, 2010.

         Microflo then moved on January 3, 2011, to dismiss the suit under California’s anti-SLAPP

rule, CAL. CIV. PROC. CODE § 425.16, see note 4, ante, arguing that Liberty’s claim is meritless and is

intended to inhibit Microflo’s constitutionally protected conduct in petitioning for relief in the prior

litigation. Microflo also moved to dismiss the case for lack of personal jurisdiction. Before the

California federal court decided these motions, however, it transferred the case on January 12, 2011,

to the District Court for the Eastern District of New York (“the District Court”), pursuant to a

stipulation by the parties, under 28 U.S.C. § 1404(a), see note 3, ante.

         Later that year, Microflo reasserted its “Motion to Strike” under California’s anti-SLAPP

rule. Judge Feuerstein referred the matter to Magistrate Judge E. Thomas Boyle, who heard oral

argument on October 6, 2011, and issued an amended report and recommendation (“R&R”) on

October 26, 2011.5 In his R&R, Magistrate Judge Boyle concluded, inter alia, that California law does


    5 Judge Feuerstein explained: “Although designated as an ‘Amended Memorandum Opinion and Order,’ all parties

agree that defendants’ motion was dispositive and that the parties did not consent to the referral to the magistrate judge.
Accordingly, I deem the ‘Amended Memorandum Opinion and Order’ to be a report and recommendation, subject to

                                                             6
not govern Microflo’s motion to dismiss under California’s anti-SLAPP rule because, under

California’s choice-of-law principles, New York law governs Liberty’s malicious prosecution claim.

In other words, Magistrate Judge Boyle determined that California’s anti-SLAPP rule does not apply

to a claim governed by New York substantive law and being heard in New York, even though the

case was originally brought in California. As Magistrate Judge Boyle explained:

             Defendants have succeeded in their argument that New York substantive law
         applies to this case. As it applies to this Motion to Strike, however, [their choice-of-
         law argument] is unavailing.

             California Code of Civil Procedure § 425.16—the anti-SLAPP statute under
         which this Motion to Strike is brought—is California substantive law. See Batzel v.
         Smith, 

, 1025–26 (9th Cir. 2003) (“Because California law recognizes
         the protection of the anti-SLAPP statute as a substantive immunity from suit, this
         Court, sitting in diversity, will do so as well.”). The Ninth Circuit has held that anti-
         SLAPP motions may be maintained in diversity cases where California provides the
         law of decision. See id.; see also U.S. ex rel. Newsham v. Lockheed Missiles & Space Co.,
         

, 971–73 (9th Cir. 1999) (applying certain subsections of California’s
         anti-SLAPP statute to state law counterclaims). However, those decisions are not
         relevant here because New York, not California, provides the law of decision.

             Defendants assert that “California law applies to the anti-SLAPP motion.”
         (Reply at 1). Their only support for this proclamation is that the “action was
         brought in California state court and the motion was timely filed in Federal District
         Court in California.” (Reply at 2). But, the case has since been transferred to New
         York and this (New York) Court has determined that California’s choice-of-law
         principles mandate the application of New York law. Defendants have not explained
         why the mere fact that an anti-SLAPP motion was filed prior to the Court’s
         evaluation of the choice-of-law question should mandate the application of
         California law to part of this action and New York law to the rest of it. If the
         argument is that the anti-SLAPP motion somehow conceptually precedes to the
         choice-of-law decision (that is, that the anti-SLAPP motion should be decided as if
         the choice-of-law question had not been answered), the Court is equally flummoxed
         as to the precedential or doctrinal authority that supports this view.

Liberty Synergistics Inc. v. Microflo Ltd., No. CV 11-0523(SJF)(ETB), 

, at *11

(E.D.N.Y. Oct. 26, 2011). Judge Feuerstein adopted this aspect of the Magistrate Judge’s R&R in an




review under 28 U.S.C. § 636(b)(1)(B).” Liberty Synergistics Inc. v. Microflo Ltd., No. CV 11-0523(SJF)(ETB), 

, at *1 n.1 (E.D.N.Y. Dec. 1, 2011).

                                                            7
order dated December 1, 2011. See Liberty Synergistics Inc. v. Microflo Ltd., No. CV 11-0523(SJF)(ETB),

, at *2 (E.D.N.Y. Dec. 1, 2011).

         In this appeal, Microflo contests that part of the District Court’s order, arguing that the

District Court should have conducted a separate choice-of-law analysis with respect to the anti-

SLAPP issue rather than viewing that choice-of-law question as derivative of the Court’s conclusion

that New York substantive law governs Liberty’s malicious prosecution claim. Liberty disputes this

argument on the merits and claims, as a jurisdictional matter, that the denial of a motion to dismiss

pursuant to California’s anti-SLAPP rule is not an immediately appealable order under the collateral

order doctrine.6

         For the reasons stated below, we conclude that appellate jurisdiction exists to consider this

appeal. We also conclude that the District Court erred by denying defendants’ motion to dismiss

under California’s anti-SLAPP rule because of the transfer of the case to New York. We intimate no

views regarding the proper disposition of any other aspect of Microflo’s motion, nor do we intimate

any views regarding Liberty’s underlying malicious prosecution claim, or the substantive law that

governs that cause of action.

                                                     DISCUSSION

                                                             A.

         It is common ground that jurisdiction is a threshold matter that must exist before a court

may decide the merits of an appeal. See Steel Co. v. Citizens for a Better Env’t, 

, 93–102

(1998). As relevant here, our appellate jurisdiction is limited to review of “final decisions” of district



    6 On June 1, 2012, prior to the parties’ merits briefing, Liberty originally filed a motion in this Court to dismiss the
appeal for lack of appellate jurisdiction. By order dated July 18, 2012, a motions panel of our Court denied the motion,
“without prejudice to pursuit before the merits panel,” and it referred “all jurisdictional and choice of law questions to
the merits panel.” On September 13, 2012, shortly after Microflo filed its opening brief, Liberty refiled its motion to
dismiss the appeal for lack of jurisdiction. That motion remained pending at the time of oral argument, and, for the
reasons stated here, it is denied.


                                                              8
courts. 28 U.S.C. § 1291.7 It is undisputed that the District Court has not issued a final judgment or

certified any issue for interlocutory appeal under 28 U.S.C. § 1292(b).8 As a general matter, orders

not falling within these categories are not appealable because of the powerful interest in “avoid[ing]

the waste of time and the delay in reaching trial finality which ensue when piecemeal appeals are

permitted.” Nelson v. Unum Life Ins. Co. of Am., 

, 119 (2d Cir. 2006) (quotation marks

omitted). Microflo, however, asserts that we have jurisdiction over this interlocutory appeal by

virtue of the collateral order doctrine, which provides for appellate jurisdiction over a small class of

“collateral” rulings that do not terminate the litigation in the court below but are nonetheless

sufficiently “final” and distinct from the merits to be appealable without waiting for a final judgment

to be entered. See Cohen v. Beneficial Indus. Loan Corp., 

, 546 (1949).

         “The requirements for collateral order appeal have been distilled down to three conditions:

that an order [1] conclusively determine the disputed question, [2] resolve an important issue

completely separate from the merits of the action, and [3] be effectively unreviewable on appeal

from a final judgment.” 

(brackets in original, internal quotation marks

omitted). These conditions are “stringent,” 

omitted), and “[t]he

justification for immediate appeal must therefore be sufficiently strong to overcome the usual

benefits of deferring appeal until litigation concludes,” Mohawk Indus., Inc. v. Carpenter, 

,

107 (2009). Moreover, “the issue of appealability under § 1291 is to be determined for the entire

category to which a claim belongs, without regard to the chance that the litigation at hand might be

speeded, or a particular injustice averted, by a prompt appellate court decision.” Digital Equip. Corp.


    7  Title 28 U.S.C. § 1291 provides, in relevant part: “The courts of appeals . . . shall have jurisdiction of appeals from
all final decisions of the district courts of the United States . . . .”

     8 Title 28 U.S.C. § 1292(b) provides that a district court may certify for immediate appellate review an otherwise

unappealable order if the court is “of the opinion that such order involves a controlling question of law as to which
there is substantial ground for difference of opinion and that an immediate appeal from the order may materially
advance the ultimate termination of the litigation . . . .” 

of Appeals then may, “in its discretion,
permit an appeal to be taken from such order.” 

Direct, Inc., 

, 868 (1994) (alteration, citation, and internal quotation marks

omitted). Whether a particular order falls within the collateral order doctrine is an issue of federal

law, even when the order itself relates to a state-law issue. Budinich v. Bechton Dickinson & Co., 

, 198–99 (1988).

                                                       i.

        We begin by considering whether the District Court’s ruling that California’s anti-SLAPP

rule was inapplicable as a matter of law, following the forum transfer, “conclusively determine[d] the

disputed question.” 

(quotation marks omitted).

        “The requirement that the district court’s order ‘conclusively determine’ the question means

that appellate review is likely needed to avoid th[e] harm” of delay. Johnson v. Jones, 

, 311

(1995). In this case, the “critical” part of this inquiry is assessing “whether ‘the essence’ of the

claimed right” is either “a right not to stand trial,” Van Cauwenberghe v. Biard, 

, 524

(1988) (quoting Mitchell v. Forsyth, 

, 525 (1985)), or a right not to “face the other burdens

of litigation,” 

. If either such right is at issue, a denial of that right

“conclusively determines” the disputed issue by ensuring that “the defendant must bear the burdens

of discovery.” Ashcroft v. Iqbal, 

, 672 (2009) (alteration and quotation marks omitted).

        Whether the “essence” of a right is to protect against the burdens of litigation “should not,

and cannot, depend on a party’s agility in so characterizing the right asserted.” Digital 

. Indeed, “in some sense, all litigants who have a meritorious pretrial claim for dismissal

can reasonably claim a right not to stand trial.” Van 

. Accordingly, we

must “examine the nature of the right asserted with special care,” 

a certain

“skepticism, if not a jaundiced eye,” Digital 

, to determine whether an

“essential aspect of the claim” is the right to avoid the burdens of litigation, Van 

. Whether a right satisfies this standard is a question of federal law, see Budinich, 

at 198–99, but where a state rule is at issue, we look to the state law to determine whether the nature

of the right is to protect certain defendants against the burdens of litigation.

         The nature of the anti-SLAPP rule is clear. According to the Supreme Court of California,

“[t]he point of the anti-SLAPP statute is that you have a right not to be dragged through the courts

because you exercised your constitutional rights.” Varian Med. Sys., Inc. v. Delfino, 

,

193 (2005) (quotation marks omitted). Accordingly, “‘[t]he protections afforded by the anti-SLAPP

statute against the harassment and burdens of litigation are in large measure lost if the petitioner is

forced to litigate a case to its conclusion before obtaining a definitive judgment through the

appellate process.’” 

Walton, 

, 521 (2002)). In line with these

observations, the Court of Appeals for the Ninth Circuit has held that the expedited dismissal

provisions of the anti-SLAPP rule share the “nature of immunity: They protect the defendant from

the burdens of trial, not merely from ultimate judgments of liability.”9 Batzel v. Smith, 

,

1025 (9th Cir. 2003); see also 

anti-SLAPP rule “is designed to protect the

defendant from having to litigate meritless cases aimed at chilling First Amendment expression”);

Factors Etc., Inc. v. Pro Arts, Inc., 

, 283 (2d Cir. 1981) (deferring to interpretations of state

law by the federal court of appeals covering that state).

         We agree. California’s anti-SLAPP rule reflects a substantive policy favoring the special

protection of certain defendants from the burdens of litigation because they engaged in



    9  Although California’s anti-SLAPP rule shares in the “nature of immunity,” 

(emphasis
supplied), the rule—contrary to the Ninth Circuit’s assertion—is not “a substantive immunity from suit,” 

statute neither constitutes—nor enables courts to effect—any kind of ‘immunity.’” Jarrow Formulas, Inc.
v. LaMarche, 

, 738 (2003) (quotation marks omitted). Rather, the expedited dismissal provisions of the
anti-SLAPP rule create “a procedure where the trial court evaluates the merits of the lawsuit using a summary-judgment-
like procedure at an early stage of the litigation.” Flatley v. Mauro, 

, 312 (2006) (quotation marks omitted).
Nonetheless, we agree with the Ninth Circuit’s conclusion that the “essence” of the anti-SLAPP rule is “to protect the
defendant from having to litigate meritless cases aimed at chilling First Amendment expression,” 

, and therefore the denial of this right is sufficiently “final” to satisfy the first prong of the collateral order doctrine.
Cf. 

(permitting an immediate appeal of a denial of qualified immunity because of the interest in
protecting certain defendants against the burdens of litigation, even where the disputed legal issue does not relate to “the
qualified immunity defense itself” as a defense to liability).

                                                               11
constitutionally protected activity. The denial of this protection through the rejection of a motion to

dismiss is sufficiently “final” to meet the first prong of the collateral order doctrine.

                                                     ii.

        The District Court’s ruling also satisfies the requirement that the appealed order must

“resolve an important issue completely separate from the merits of the action.” 

(quotation marks omitted). The requirement that the issue be “important” is a pragmatic one,

ensuring that “the considerations that favor immediate appeals seem comparatively strong and those

that disfavor such appeals seem comparatively weak.” 

; see also Mohawk 

. Immediate appeals are generally more appropriate “where purely legal matters are

at issue.” 

. Whether the question presented is “separate” from the merits

depends on whether it turns on matters “significantly different from the fact-related legal issues that

likely underlie the plaintiff’s claim on the merits.” 

factors favor immediate appeal in this case. First, the questions presented are “neat

abstract issues of law” that appellate courts are better suited to consider. 

marks

omitted). Those questions, moreover, need only be answered once, since we are asked to consider

whether any plaintiff may invoke California’s anti-SLAPP rule following a consensual forum

transfer—not whether this particular plaintiff actually warrants protection given the facts of this

case. See note 11, post; cf. Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 

, 12 (1983)

(“An order that amounts to a refusal to adjudicate the merits plainly presents an important issue

separate from the merits.”). In other words, the question presented in this case is whether the

defendants get one proverbial “bite at the apple” through consideration of the motion in the lower

court—not whether the defendants get a “second bite” through appellate review. See, e.g., Weight

Watchers of Phila., Inc. v. Weight Watchers Int’l, Inc., 

, 773 (2d Cir. 1972) (“Another

important factor bearing on the application of the Cohen doctrine . . . is whether a decision will settle


                                                     12
a point once and for all, as it did in the Cohen case, or will open the way for a flood of appeals

concerning the propriety of a district court’s ruling on the facts of a particular suit.” (citation

omitted)).10 And the importance of considering that threshold inquiry is particularly notable in this

case, where the policy interest at stake is one of substantial importance that cannot be effectively

vindicated after final judgment. See Part A.iii., post.

         The District Court’s order also was completely separate from the merits of the plaintiff’s

cause of action. The Court denied Microflo’s motion as a matter of law, ruling that the motion was

predicated on a source of law that did not apply to the suit. The District Court therefore did not

consider the underlying facts in the complaint, much less the “merits” of the malicious prosecution

claim. Additionally, as we will see in Part B, post, the question whether California’s anti-SLAPP rule

applies in this diversity case does not depend on whether California substantive law governs the

merits of Liberty’s malicious prosecution claim. Accordingly, we are able to review the District

Court’s order with respect to the anti-SLAPP issue without addressing the District Court’s decision

that New York law governs the malicious prosecution claim, thereby avoiding the general rule that

“one may not bring an interlocutory appeal of a district court’s choice of law determination.”

Gramercy Mills, Inc. v. Wolens, 

, 571 (7th Cir. 1995). For these reasons, the question raised



    10  The parties dispute whether a purported “fourth prong” of the collateral order doctrine requires that the appeal
raise “serious and unsettled questions of law.” Banque Nordeurope S.A. v. Banker, 

, 1131 (2d Cir. 1992)
(citing 

, and Nixon v. Fitzgerald, 

, 743 (1982)). Our Circuit’s approach to the collateral
order doctrine, however, has simply copied the Supreme Court’s formulation and not attempted to craft some additional
element that the Supreme Court has not yet recognized. Accordingly, we use the formulation of the collateral order
doctrine that the Supreme Court has consistently used for decades. See, e.g., 

; see also Under Seal v.
Under Seal, 

, 481 n.1 (4th Cir. 2003) (collecting dozens of cases using the three-prong test).
     To be sure, the Supreme Court, in Nixon, noted, in dictum, that “Cohen established that a collateral appeal of an
interlocutory order must ‘presen[t] a serious and unsettled 

(citing 

).
But after this dictum on Cohen, the Court immediately reverted to the familiar three-factor test, see, e.g., Moses H. Cone
Mem’l 

, and it has used that test ever since without exception, see Under 

n.1
(collecting cases). We follow the Supreme Court’s lead. See 

reviewing the issue). “There
is simply no requirement that the argument on appeal be novel.” Burlington N. & Santa Fe Ry. Co. v. Vaughn, 

, 1091 (9th Cir. 2007); cf. 15A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3911.5 (2013).



                                                            13
in this appeal presents “an important issue completely separate from the merits of the action.”11

(quotation marks omitted).

                                                             iii.

         Finally, we conclude that the denial of a motion to dismiss pursuant to California’s anti-

SLAPP rule would “be effectively unreviewable on appeal from a final judgment.” 

(quotation marks omitted). As explained in Part A.i., ante, the anti-SLAPP rule is designed to

“protect the defendant from the burdens of trial.” 

. Consequently, even if

the defendants could obtain relief in a later appeal regarding some aspects of California’s anti-

SLAPP rule (under the fee-shifting provisions, for instance), the denial of pre-trial protections would

be unreviewable on appeal from a final judgment of a district court.

         By itself, however, the inability to review after final judgment the denial of pre-trial

protections does not settle whether the third prong of the collateral order test is satisfied. As the

Supreme Court explained in Will:

         Since only some orders denying an asserted right to avoid the burdens of trial qualify
         . . . as orders that cannot be reviewed “effectively” after a conventional final
         judgment, the cases have to be combed for some further characteristic that merits
         appealability under Cohen; and . . . that something further boils down to “a judgment
         about the value of the interests that would be lost through rigorous application of a
         final judgment requirement.”

(quoting Digital 

). Immediate review must further

“some particular value of a high order . . . in support of the interest in avoiding trial.” 

is, it is not mere avoidance of a trial, but avoidance of a trial that would imperil a substantial

     11 Our decision is narrow in the sense that this appeal is “concerned only with the immediate appealability of an

order that a state anti-SLAPP statute does not apply at all” to a federal diversity case where the suit is transferred to a
federal court in another state and the cause of action is governed by that other state’s law. Godin v. Schencks, 

,
84 (1st Cir. 2010). The Ninth Circuit has also applied the collateral order doctrine to review the denial of a motion
under California’s anti-SLAPP rule based on the “merits” of the motion, as opposed to the inapplicability of the rule.
See 

; see also DC Comics v. Pac. Pictures Corp., 

, 1015 (9th Cir. 2013) (reaffirming
the holding in Batzel). We need not address that issue here. See, e.g., 

(“We defer to another day
resolution of the question of whether an order addressed to the merits of a ruling under an anti-SLAPP statute is
immediately appealable.”).


                                                             14
public interest, that counts when asking whether an order is ‘effectively’ unreviewable if review is to

be left until later.” 

Coopers & Lybrand v. Livesay, 

, 468 (1978)).

         California enacted the anti-SLAPP rule to advance the substantial public interest in

safeguarding constitutionally protected activities.12 See Part A.i., ante. The State demonstrated the

significance of this interest by providing for immediate appeals from the denial of anti-SLAPP

motions in California courts. See CAL. CIV. PROC. CODE § 425.16(i).13 In light of these compelling

public interests, we agree with the Ninth Circuit that “[i]f the defendant were required to wait until

final judgment to appeal the denial of a meritorious anti-SLAPP motion,” an appellate reversal of a

judgment “would not remedy the fact that the defendant had been compelled to defend against a

meritless claim brought to chill rights of free expression.” 

; cf. Digital 

(“When a policy is embodied in a constitutional or statutory provision entitling a

party to immunity from suit (a rare form of protection), there is little room for the judiciary to

gainsay its ‘importance.’”).

         To be sure, we recognize that the particular legal question presented in this appeal—namely,

whether the forum transfer made the anti-SLAPP rule inapplicable—could be reviewed following

final judgment if Microflo moved for attorneys’ fees. But the Supreme Court has clarified that,

when the essence of a right is to shield certain defendants from the burdens of litigation, collateral

review is not defeated by the opportunity for post-judgment review of the same legal question that

    12The anti-SLAPP rule includes the following statement of purpose:
        The Legislature finds and declares that there has been a disturbing increase in lawsuits brought
        primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for
        the redress of grievances. The Legislature finds and declares that it is in the public interest to
        encourage continued participation in matters of public significance, and that this participation should
        not be chilled through abuse of the judicial process. To this end, this section shall be construed
        broadly.
CAL. CIV. PROC. CODE § 425.16(a).

      13 That section provides: “An order granting or denying a special motion to strike shall be appealable under Section

904.1.” CAL. CIV. PROC. CODE § 425.16(i). Section 904.1 provides, in relevant part: “An appeal, other than in a limited
civil case, may be taken from any of the following: (1) From a judgment . . . [;] (13) From an order granting or denying a
special motion to strike under Section 425.16.” 

arose when considering the earlier order. See, e.g., Behrens v. Pelletier, 

, 308 (1996) (“[T]he

defense is meant to give . . . a right, not merely to avoid standing trial, but also to avoid the burdens

of such pretrial matters as discovery . . . . Whether or not a later summary judgment motion is

granted, denial of a motion to dismiss is conclusive as to this right.” (internal quotation marks

omitted)). Accordingly, even though we could review the pertinent choice-of-law questions in a

post-judgment appeal, that review would not be “effective” in vindicating the compelling public

interest protected by the pre-trial aspects of California’s anti-SLAPP rule.

        For these reasons, we conclude that the denial of the pre-trial protections offered by the

anti-SLAPP rule would be “effectively unreviewable” in a later appeal, and that interlocutory appeal

is available under the collateral order doctrine.

                                                    B.

        Having concluded that an interlocutory appeal is available, we now turn to the relevant

choice-of-law principles in federal diversity cases. As interpreted by the Supreme Court, the Rules

of Decision Act, 28 U.S.C. § 1652, see note 1, ante, provides that federal courts exercising diversity

jurisdiction over a state-law claim must consider two conceptually distinct issues. First, a federal

court exercising diversity jurisdiction must apply the choice-of-law rules of the state in which that

court sits to determine the rules of decision that would apply if the suit were brought in state court.

See Klaxon Co. v. Stentor Electric Mfg. Co., 

, 494–97 (1941). Though constrained in some

respects by the United States Constitution, this choice-of-law inquiry is an issue of state law. See Sun

Oil Co. v. Wortman, 

, 729–30 (1988). Second, after using state conflict-of-laws principles

to ascertain the rules of decision that would apply in the state courts of the federal forum, federal

courts apply those state rules of decision that are “substantive” under Erie, and are consistent with




                                                    16
federal law.14 See 

also Gasperini v. Ctr. for Humanities, Inc., 

, 427 (1996)

(“Under the Erie doctrine, federal courts sitting in diversity apply state substantive law and federal

procedural law.”).

         Whether a particular state rule of decision is “substantive” under Erie is a question of federal

law, see Sun Oil 

; Hanna v. Plumer, 

, 465–66 (1965), and is decided

by examining

         whether application of the [State’s] rule would make so important a difference to the
         character or result of the litigation that failure to enforce it would unfairly
         discriminate against citizens of the forum State, or whether application of the rule
         would have so important an effect upon the fortunes of one or both of the litigants
         that failure to enforce it would be likely to cause a plaintiff to choose the federal
         court.

n.8 (quotation marks omitted). This test looks not to the labels but to the

content of state rules of decision.15 In other words, once a federal court decides that a state rule of

decision would apply in an identical action in state court, it is “immaterial” whether that state rule of

decision is labelled by state law as “procedural,” “substantive,” both, or neither. Guaranty Trust Co. v.

York, 

, 109 (1945).

         “Classification of a law as ‘substantive’ or ‘procedural’ for Erie purposes is sometimes a

challenging endeavor,” 

, but perhaps even more confounding is the fact

that a state’s “procedural” rules under its own choice-of-law principles can be “substantive” for

purposes of federal diversity jurisdiction. For instance, a state court considering whether to apply its

own statutes of limitations to claims governed by the laws of other states, may apply its statutes of

limitations as a “procedural” matter. See, e.g., Sun Oil 

. A federal court, however,

     14 If a federal statute (or rule established under the Rules Enabling Act) displaces a state “substantive” rule, the

Supreme Court has explained that the federal statute or rule “governs—[state] law notwithstanding—unless it exceeds
statutory authorization or Congress’s rulemaking power.” Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 

, 1437 (2010).
     15 Whether a state rule of decision is “substantive” in this sense is a legal inquiry independent of the facts of a

particular case. See, e.g., 

n.8 (asking whether “failure to enforce [the state law] would be likely to
cause a plaintiff [not the plaintiff] to choose the federal court.” (emphasis supplied; quotation marks omitted)).

                                                               17
may apply the same statute of limitations because it is “substantive” within the meaning of Erie. See

Guaranty Trust 

. As the Supreme Court has explained:

        Guaranty Trust itself rejects the notion that there is an equivalence between what is
        substantive under the Erie doctrine and what is substantive for purposes of conflict
        of 

. Except at the extremes, the terms “substance” and
        “procedure” precisely describe very little except a dichotomy, and what they mean in
        a particular context is largely determined by the purposes for which the dichotomy is
        drawn. In the context of our Erie jurisprudence, . . . that purpose is to establish
        (within the limits of applicable federal law, including the prescribed Rules of Federal
        Procedure) substantial uniformity of predictable outcome between cases tried in a
        federal court and cases tried in the courts of the State in which the federal court sits.
        . . . . The purpose of the substance-procedure dichotomy in the context of the Full
        Faith and Credit Clause, by contrast, is not to establish uniformity but to delimit
        spheres of state legislative competence.

Sun Oil 

.

        In sum, if state conflict-of-law principles call for a rule of decision (1) that would apply to

the suit if it were brought in state court, (2) that is “substantive” within the meaning if Erie, and

(3) that is not displaced by a valid federal law or rule governing the same issue, then the Rules of

Decision Act, see note 1, ante, requires the federal court sitting in diversity to apply the state rule,

irrespective of whether that rule is understood to be “procedural” or “substantive” as a matter of

state law. We address below the first of these issues, which is the only one contested by the parties.

See generally Greenlaw v. United States, 

, 243 (2008) (“In our adversary system, in both civil

and criminal cases, in the first instance and on appeal, we follow the principle of party presentation.

That is, we rely on the parties to frame the issues for decision and assign to courts the role of neutral

arbiter of matters the parties present.”).

        As noted, a federal court exercising diversity jurisdiction generally must apply the choice-of-

law rules of the state in which the court sits. Klaxon 

. In this case, however,

Liberty originally filed suit in California, after which time the parties agreed to transfer the case to

the Eastern District of New York pursuant to 28 U.S.C. § 1404(a), see note 3, ante. The Supreme

Court has held that, in such circumstances, the governing law “does not change following a transfer

                                                     18
of venue under § 1404(a),” regardless of which party initiates the transfer. 

.

Here, that means that the federal court in New York must pretend, for the purpose of determining

the applicable state rules of decision, that it is sitting in California.16 Accordingly, the District Court

was required to determine the rules of decision that a California state court would apply.17 See, e.g.,

Phelps v. McClellan, 

, 663 (6th Cir. 1994) (“Because the federal court in Ohio would [as a

procedural matter], under Ohio choice of law rules, apply the Ohio statute of limitations, so must

the federal court in New York if the case was transferred there under section 1404(a).”); Muldoon v.

Tropitone Furniture Co., 

, 966 (9th Cir. 1993) (“Because an Illinois state court would [as a

procedural matter] have applied the Illinois statute of limitations, a federal district court in Illinois

would have been bound to do likewise. As transferee court, the district court in California, in turn,

should have applied the statute that the Illinois district court, the transferor court, would have been

required to apply.” (internal citations omitted)).


     16 For this reason, there is no merit to Liberty’s argument that it makes no difference whether a California state court

would apply the anti-SLAPP rule in this case because “the case is no longer pending in a California court and the New
York District Court held that New York law governs Liberty’s malicious prosecution claim.” Appellee’s Br. at 7.
Although Liberty’s argument makes intuitive sense, see, e.g., 

(Scalia, J., dissenting) (noting the
considerable “costs attending the necessity for transferee courts to figure out the choice-of-law rules (and probably the
substantive law) of distant States”), it runs directly contrary to the Supreme Court’s holding that the law governing a
claim “does not change following a transfer of venue under § 1404(a),” regardless of which party initiates the transfer, 

rather than applying the rules of decision that would apply in a New York court, as it most often
does in diversity cases, the Eastern District of New York must use those rules of decision that would apply in a
California state court.
      Similarly, Microflo’s argument that “New York has no interest in not applying California’s Anti-SLAPP statute in
this litigation,” Appellants’ Brief at 13, is inapposite, because New York’s interests would not influence a California
court’s decision to apply California’s anti-SLAPP rule as a procedural matter. It is true that “the transferee court must
follow the choice-of-law rules that prevailed in the transferor court,” 

(emphasis supplied), but the
transferee court must conduct this inquiry as if the case was still being litigated in the transferor court, thereby ensuring
that “[a] transfer under § 1404(a) . . . does not change the law applicable to a diversity case,” 

for
example, the District Court should have assessed what a California court would do in a case heard in its own court—not
what California’s choice-of-law rules might prescribe for suits being litigated in a federal court in New York. As the
Supreme Court held in Van Dusen v. Barrack, 

(1964), “the transferee district court must . . . apply the state
law that would have been applied if there had been no change of venue.” 

supplied); see also 

(extending the holding of Van Dusen to transfers initiated by a plaintiff rather than a defendant).

    17 We note that federal courts in this Circuit, including the Court of Appeals, are bound by our interpretations of

federal law, even when a case is transferred from a district court in another circuit. See Desiano v. Warner-Lambert & Co.,

, 90–91 (2d Cir. 2006).


                                                                 19
         We have no reason to doubt that a California state court would apply California’s anti-

SLAPP rule as a matter of its own procedural rules, even if it applied New York substantive law to

the merits of the malicious prosecution action. The anti-SLAPP rule, which appears in California’s

Code of Civil Procedure, and which California courts have described as a “procedural remedy,”

Rusheen v. Cohen, 

, 1055 (2006), and a “mere rule of procedure,” Ludwig v. Superior

Court, 

, 21 (1995), states that it is intended to avoid the “abuse of the judicial

process” in the form of “lawsuits brought primarily to chill the valid exercise of the constitutional

rights of freedom of speech and petition for the redress of grievances,” CAL. CIV. PROC. CODE

§ 425.16(a). To this end, the rule provides for expeditious dismissal and an award of attorney’s fees

and costs for any meritless “cause of action against a person arising from any act of that person in

furtherance of the person’s right of petition or free speech under the United States Constitution or

the California Constitution in connection with a public issue . . . .” 

also 

text of the rule is not limited to causes of action that arise under California law,

and we perceive no reason to construe it that way.

         Indeed, California courts have repeatedly held, as a matter of state law, that California’s anti-

SLAPP rule is “procedural” in nature and therefore applies in California courts regardless of which

source of law governs a plaintiff’s claim. See, e.g., Bradbury v. Superior Court, 

,

1118 (1996) (“Where the action is founded on a federal statute and brought in state court, state

procedure controls unless the federal statute provides otherwise. The Legislature, in enacting

section 425.16, recognized that all kinds of claims could achieve the objective of a SLAPP suit.”

(internal citations and quotation marks omitted)); Vergos v. McNeal, 

, 1392 n.4

(2007) (“Federal civil rights claims brought in California state courts are subject to section 425.16

motions.”). Moreover, even if California state law required a “substantive” choice-of-law analysis

    18  As relevant here, § 425.16(c)(1) provides that “a prevailing defendant on a special motion to strike shall be
entitled to recover his or her attorney’s fees and costs.” CAL. CIV. PROC. CODE § 425.16(c)(1).

                                                             20
using California’s “governmental interest analysis” approach, Sullivan v. Oracle Corp., 

,

1202 (2011), the anti-SLAPP rule would still apply. As one California appellate court recently

explained in a case where Virginia law governed the cause of action and the plaintiff, on that basis,

argued that the anti-SLAPP rule was inapplicable:

            [O]ne of the purposes of the [California anti-SLAPP] statute is to ensure that
        California courts, and the state’s judicial processes as a whole, are not used as a
        means of interfering with the valid exercise of the right of free speech or the right of
        petition. Because Alison filed her complaint in a California court, this state has an
        interest in applying the procedures described in section 425.16 to ensure that her
        claims have sufficient merit to justify the potential restraints it places on
        Respondents’ right to exercise their right to speak freely to police. . . .

            In effect, Alison argues that Virginia has an interest in having its citizens, who
        are the defendants in this case, receive fewer procedural protections than they would
        receive in Virginia courts. Alison fails to explain how Virginia’s interests are
        impaired by such an outcome and we find no merit in her argument. Moreover, we
        can conceive of no possible interest that Virginia might have in whether California
        applies a procedural mechanism that is intended to ensure [that] its own courts are
        not used to restrain the exercise of the right of petition or the right of free speech.

McDaniel v. McDaniel, No. B226832, 

, at *7–8 (Cal. Ct. App. Oct. 18, 2011)

(unpublished). It is unclear to us that this type of conflicts analysis was even necessary under

California law, given the procedural nature of the anti-SLAPP rule, cf. County of Los Angeles v. Superior

Court, 

, 17 (2006) (“Although federal law controls the substantive aspects of

plaintiffs’ federal civil rights claim, state rules of evidence and procedure apply unless [the]

application of those rules would affect plaintiffs’ substantive federal rights.”), but we have no doubt

that other California courts would reach the same conclusion were they to apply California’s

“substantive” choice-of-law principles.

        To be sure, the Due Process Clause and the Full Faith and Credit Clause, among other

constitutional provisions, provide some limitations to the application of state conflict-of-law rules in

ways that would frustrate causes of action defined by other states’ laws, but this case does not




                                                    21
approach those constitutional boundaries.19 Indeed, “[n]o one disputes the general and unassailable

proposition . . . that States may establish the rules of procedure governing litigation in their own

courts,” Felder v. Casey, 

, 138 (1988), and it is common for procedural rules to have

substantive implications, see, e.g., Shady 

(plurality opinion); 

J., concurring); see also Sun Oil 

(“Since the procedural rules of its courts

are surely matters on which a State is competent to legislate, it follows that a State may apply its own

procedural rules to actions litigated in its courts.”).

         In sum, California’s anti-SLAPP rule would apply to this suit if the claim were proceeding in

a California state court. Because the District Court erred with respect to this issue, we vacate the

District Court’s order and remand for its further consideration of the motion.




     19 As a general matter, the substantive immunities and defenses available against a particular cause of action are

governed by the same source of law that provides the cause of action. See, e.g., Howlett v. Rose, 

, 375 (1990)
(“The elements of, and the defenses to, a federal cause of action are defined by federal law.”); Ferri v. Ackerman, 

, 198 (1979) (“[W]hen state law creates a cause of action, the State is free to define the defenses to that claim,
including the defense of immunity, unless, of course, the state rule is in conflict with federal law.”). At one point, the
Supreme Court seemed to give this principle constitutional status. See Tenn. Coal, Iron & R.R. Co. v. George, 

,
360 (1914) (“The courts of the sister State trying the case would be bound to give full faith and credit to all those
substantial provisions of the statute which inhered in the cause of action . . . .”). However, “[t]he conflicts law embodied
in the Full Faith and Credit Clause allows room for common-law development,” Sun Oil 

n.1, and we
have held en banc that when a state court recognizes a claim arising from another state’s law, the other state’s law need
not “control every incident of the claim,” and the forum state may “qualif[y] the rights and obligations to which the
statutory cause of action gives birth,” Pearson v. Ne. Airlines, Inc., 

, 557–58 (2d Cir. 1962) (en banc). But see 

J., dissenting) (“The Full Faith and Credit Clause insures that, in making its choice, the legislature
creating the claim need not have to weigh the risk that the courts of sister states looking to its ‘public acts’ as a source of
rights will disregard substantial conditions which it has imposed . . . .”). The Supreme Court has declined to endorse our
interpretation of the Full Faith and Credit Clause, see Van Dusen v. Barrack, 

, 629 n.24 (“intimat[ing] no
view” regarding our Pearson holding), but the Court has been markedly reluctant to interpret that Clause as overriding a
forum state’s conflict-of-law rules, see, e.g., Franchise Tax Bd. v. Hyatt, 

, 498 (2003) (declining “to embark on a
course of balancing States’ competing sovereign interests to resolve conflicts of laws under the Full Faith and Credit
Clause”); cf. Sun Oil 

(Brennan, J., concurring) (identifying a constitutional concern under the Full
Faith and Credit Clause if a forum state were to “adjudicat[e] out-of-state claims under the forum’s own law on
[substantive issues],” and criticising the majority for its “conclusory” assertion that “remedies, burdens of proof, and
burdens of production” are not substantive in this sense). See generally Caleb Nelson, Originalism and Interpretive Conventions,
70 U. CHI. L. REV. 519, 593–97 (2003) (discussing interpretations of the Full Faith and Credit Clause). But even if
constitutional limitations on state choice-of-law rules were more tightly construed, the anti-SLAPP rule at issue here
does not alter a defendant’s liability, but rather, provides for the expedited dismissal of certain meritless disputes.


                                                               22
                                  CONCLUSION

To summarize, we hold that:

1. Jurisdiction over this interlocutory appeal exists under the “collateral order” doctrine,

   because the District Court rejected Microflo’s motion to dismiss under California’s anti-

   SLAPP rule by conclusively determining a disputed issue on an important question of

   law that is “completely separate from the merits of the action,” and because that decision

   would be effectively unreviewable on appeal from a final judgment. 

. In particular, the essence of the protection afforded by California’s anti-SLAPP

   rule—though not a form of immunity—is to protect certain defendants against the

   burdens of litigation. We also are able to review the District Court’s decision, regarding

   whether California’s anti-SLAPP rule can apply to this diversity suit, without considering

   the District Court’s determination that New York substantive law governs the merits of

   Liberty’s malicious prosecution claim.

2. The District Court erred by conflating the relevant state choice-of-law question with the

   separate federal choice-of-law question under the Erie doctrine. State rules that are

   “procedural” under state choice-of-law principles may be applicable in federal diversity

   suits if those rules are “substantive” within the meaning of Erie and are consistent with

   federal law. See Sun Oil 

.

3. California’s anti-SLAPP rule would apply in a California state court as a procedural

   matter, regardless of which state’s substantive rule of decision the California court would

   apply in the action. Accordingly, the District Court erred in its choice-of-law analysis by

   concluding that California’s anti-SLAPP rule could not apply following the forum

   transfer because New York law governed the plaintiff’s cause of action.




                                          23
       For these reasons, Liberty’s motion to dismiss this appeal for lack of appellate jurisdiction is

DENIED; the order of the District Court denying Microflo’s motion to dismiss under California’s

anti-SLAPP rule is VACATED; and the cause is REMANDED to the District Court for its further

consideration of the motion to dismiss, and for such further proceedings, consistent with this

opinion, as may be appropriate in the circumstances.




                                                  24