                 FOR PUBLICATION

      UNITED STATES COURT OF APPEALS
           FOR THE NINTH CIRCUIT

TARLA MAKAEFF, on behalf of                No. 11-55016
herself and all others similarly
situated,                                    D.C. No.
          Plaintiff-counter-defendant -   3:10-cv-00940-
                             Appellant,     IEG-WVG

                 and
                                             ORDER
BRANDON KELLER; ED OBERKROM;              DENYING THE
PATRICIA MURPHY,                          PETITION FOR
                      Plaintiffs,          REHEARING
                                            EN BANC
                  v.

TRUMP UNIVERSITY, LLC, a New
York limited liability company,
AKA Trump Entrepreneur Initiative,
       Defendant-counter-claimant -
                            Appellee,

                 and

DONALD J. TRUMP,
                           Defendant.


      Appeal from the United States District Court
         for the Southern District of California
    Irma E. Gonzalez, Chief District Judge, Presiding
2               MAKAEFF V. TRUMP UNIVERSITY

                   Argued and Submitted
             January 18, 2012—Irvine, California

                    Filed November 27, 2013

     Before: Alex Kozinski, Chief Judge, Kim McLane
      Wardlaw and Richard A. Paez, Circuit Judges.

                         Order;
       Concurrence by Judges Wardlaw and Callahan;
                Dissent by Judge Watford


                           SUMMARY*


                California Anti-SLAPP Statute

    The panel denied a petition for panel rehearing and denied
a petition for rehearing en banc on behalf of the court.

    Concurring in the denial of rehearing en banc, Judge
Wardlaw and Callahan, joined by Judges W. Fletcher and
Gould, rejected the dissent’s assertions that the motion to
strike provision of California’s anti-SLAPP statute collides
with Federal Rules 12 and 56 and that this case needs to be
taken en banc to overrule United States ex rel. Newsham v.
Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir.
1999), and Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003).




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
              MAKAEFF V. TRUMP UNIVERSITY                    3

    Dissenting from the denial of rehearing en banc, Judge
Watford, joined by Chief Judge Kozinski and Judges Paez
and Bea, stated that California’s anti-SLAPP statute
impermissibly supplements the Federal Rules’ criteria for
pre-trial dismissal of an action. Judge Watford believes that
the court should have taken this case en banc to bring its line
of case law in line with Shady Grove Orthopedic Assocs.,
P.A. v. Allstate Ins. Co., 559 U.S. 393, 398 (2010), and the
Supreme Court’s decisions establishing the proper scope of
the collateral order doctrine.


                          ORDER

    Chief Judge Kozinski and Judge Paez have voted to grant
the petition for rehearing en banc. Judge Wardlaw has voted
to deny the petition for rehearing en banc.

    The full court was advised of the petition for rehearing en
banc. A judge requested a vote on whether to rehear the
matter en banc. The matter failed to receive a majority of the
votes of the nonrecused active judges in favor of en banc
consideration. Fed. R. App. P. 35(f).

   Appellee’s petition for rehearing en banc, filed April 30,
2013, is denied. Judge Watford’s dissent from denial of en
banc rehearing, and Judges Wardlaw and Callahan’s
concurrence in the denial of en banc rehearing, are filed
concurrently with this Order.

   IT IS SO ORDERED.
4             MAKAEFF V. TRUMP UNIVERSITY

WARDLAW and CALLAHAN, Circuit Judges, with whom
Judges FLETCHER and GOULD join, concurring in the
denial of rehearing en banc:

    “En banc courts are the exception, not the rule.” United
States v. American-Foreign S.S. Corp., 363 U.S. 685, 689
(1960). They are “not favored,” Fed. R. App. P. 35, and
“convened only when extraordinary circumstances exist,”
American-Foreign S.S. Corp., 363 U.S. at 689. Because the
panel opinion faithfully follows our circuit’s precedent,
creates no inter-circuit split, does not present an issue of
exceptional importance, and because the contrary result
would create a circuit split, a call to rehear this appeal en
banc failed to gain the support of a majority of our active
judges. We concur.

    Our dissenting colleagues urge us to overrule our
decisions in United States ex rel. Newsham v. Lockheed
Missiles & Space Co., 190 F.3d 963 (9th Cir. 1999), and
Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003). In Newsham,
we held that the motion to strike and attorneys’ fees
provisions of California’s anti-SLAPP statute apply in
diversity cases; in Batzel, we held that the denial of an anti-
SLAPP motion is immediately appealable under the collateral
order doctrine. Newsham and Batzel were correctly decided.
Not only is the dissent’s desire to use this appeal as a vehicle
to change our circuit’s law based on a misreading of Supreme
Court precedent; it also distorts our standard for rehearing an
appeal en banc.

                               I.

   The dissent asserts that the motion to strike provision of
California’s anti-SLAPP statute collides with Federal Rules
              MAKAEFF V. TRUMP UNIVERSITY                     5

12 and 56. This was exactly the argument advanced by the
SLAPP plaintiff in Newsham. There, we concluded that there
was no “direct collision” because the motion to strike and
attorneys’ fees provisions of the anti-SLAPP statute and
Rules 12 and 56 “‘can exist side by side . . . each controlling
its own intended sphere of coverage without conflict.’”
Newsham, 190 F.3d at 972 (ellipsis in original) (quoting
Walker v. Armco Steel Corp., 446 U.S. 740, 752 (1980)). We
reasoned that, under the anti-SLAPP statute, a SLAPP
defendant may bring a special motion to strike. If he is
successful, the SLAPP counterclaim will be dismissed and
the plaintiff-counter-defendant may be entitled to attorneys’
fees. If he is unsuccessful, he “remains free to bring a Rule
12 motion to dismiss, or a Rule 56 motion for summary
judgment.” Id.

    The Supreme Court’s decision in Shady Grove
Orthopedic Associates v. Allstate Insurance Co., 559 U.S.
393 (2010), does not change this reasoning. There, the
Supreme Court addressed whether a New York statute that
precluded class actions in suits seeking penalties or statutory
minimum damages collided with Federal Rule of Civil
Procedure 23. The Court framed the “direct collision”
inquiry in a new way: it asked whether the state statute at
issue “attempts to answer the same question” as the Federal
Rule. Id. at 399. To determine the questions answered by
Rule 23, the Court looked to the plain language of the Rule,
which “states that ‘[a] class action may be maintained’ if two
conditions are met: The suit must satisfy the criteria set forth
in subdivision (a) (i.e., numerosity, commonality, typicality,
and adequacy of representation), and it also must fit into one
of the three categories described in subdivision (b).” Id. at
398 (alteration in original) (quoting Fed. R. Civ. P. 23(b)).
6             MAKAEFF V. TRUMP UNIVERSITY

Focusing on Rule 23’s use of the words “may be maintained,”
the Court continued:

        By its terms this creates a categorical rule
        entitling a plaintiff whose suit meets the
        specified criteria to pursue his claim as a class
        action. (The Federal Rules regularly use
        “may” to confer categorical permission, see,
        e.g., Fed. Rules Civ. Proc. 8(d)(2)-(3),
        14(a)(1), 18(a)-(b), 20(a)(1)-(2), 27(a)(1),
        30(a)(1), as do federal statutes that establish
        procedural entitlements, see, e.g., 29 U.S.C.
        § 626(c)(1); 42 U.S.C. § 2000e–5(f)(1).)

Id. at 398–99. The Rule “provides a one-size-fits-all formula
for deciding the class-action question.” Id. at 399. The state
statute directly conflicted with Rule 23’s categorical rule
because it “states that Shady Grove’s suit ‘may not be
maintained as a class action’ (emphasis added) because of the
relief it seeks,” even if Shady Grove’s suit meets the
requirements of Rule 23. Id.

    The dissent’s assertion that Rules 12 and 56 together
define a cohesive system for weeding out meritless claims
that is akin to Rule 23’s categorical rule turns Shady Grove’s
lens into a kaleidoscope. This assertion overlooks the Court’s
reliance on textual analysis in Shady Grove. Rule 23 states
that “[a] class action may be maintained” if certain
requirements are met. Therefore, Rule 23 provides a
categorical rule: if the requirements are met, then a plaintiff
is entitled to maintain his suit as a class action.

    In contrast, Rules 12 and 56 do not provide that a plaintiff
is entitled to maintain his suit if their requirements are met;
                 MAKAEFF V. TRUMP UNIVERSITY                            7

instead, they provide various theories upon which a suit may
be disposed of before trial. California’s anti-SLAPP statute,
by creating a separate and additional theory upon which
certain kinds of suits may be disposed of before trial,
supplements rather than conflicts with the Federal Rules.1

    Rule 12 provides a mechanism to test the legal sufficiency
of a complaint. The question asked by Rule 12 is whether the
plaintiff has stated a claim that is plausible on its face and
upon which relief can be granted. California’s anti-SLAPP
statute does not attempt to answer this question; instead,
California Code of Civil Procedure § 430.10, the state
statutory analog of Rule 12, does. See Cal. Civ. Proc. Code
§ 430.10.2 That the California legislature enacted both an


 1
    Cf. Godin v. Schencks, 629 F.3d 79, 91 (1st Cir. 2010) (“Neither Rule
12 nor Rule 56 of the federal rules of procedure purport to be so broad as
to preclude additional mechanisms meant to curtail rights-dampening
litigation through the modification of pleading standards.”).
 2
     Section 430.10 provides:

          The party against whom a complaint or cross-complaint
          has been filed may object, by demurrer or answer as
          provided in Section 430.30, to the pleading on any one
          or more of the following grounds:

          (a) The court has no jurisdiction of the subject of the
          cause of action alleged in the pleading.

          (b) The person who filed the pleading does not have the
          legal capacity to sue.

          (c) There is another action pending between the same
          parties on the same cause of action.

          (d) There is a defect or misjoinder of parties.
8             MAKAEFF V. TRUMP UNIVERSITY

analog to Rule 12 and, additionally, an anti-SLAPP statute is
strong evidence that the provisions are intended to serve
different purposes and control different spheres. Moreover,
the anti-SLAPP statute asks an entirely different question:
whether the claims rest on the SLAPP defendant’s protected
First Amendment activity and whether the plaintiff can meet
the substantive requirements California has created to protect
such activity from strategic, retaliatory lawsuits.

    Furthermore, the contention that California Code of Civil
Procedure § 425.16 imposes a probability requirement at the
pleading stage ignores California Supreme Court precedent.
Although § 425.16 asks courts to determine whether “the
plaintiff has established that there is a probability that the
plaintiff will prevail on the claim,” (emphasis added), the
California Supreme Court has held that:

       past [California state] cases interpreting this
       provision establish that the Legislature did not


       (e) The pleading does not state facts sufficient to
       constitute a cause of action.

       (f) The pleading is uncertain. As used in this
       subdivision, “uncertain” includes ambiguous and
       unintelligible.

       (g) In an action founded upon a contract, it cannot be
       ascertained from the pleading whether the contract is
       written, is oral, or is implied by conduct.

       (h) No certificate was filed as required by Section
       411.35.

       (i) No certificate was filed as required by Section
       411.36.
              MAKAEFF V. TRUMP UNIVERSITY                     9

       intend that a court . . . would weigh
       conflicting evidence to determine whether it is
       more probable than not that plaintiff will
       prevail on the claim, but rather intended to
       establish a summary-judgment-like procedure
       available at an early stage of litigation that
       poses a potential chilling effect on speech-
       related activities.

Taus v. Loftus, 40 Cal. 4th 683, 714 (2007). In other words,
a reviewing court “should grant the motion if, as a matter of
law, the defendant’s evidence supporting the motion defeats
the plaintiff’s attempt to establish evidentiary support for the
claim.” Vargas v. City of Salinas, 46 Cal. 4th 1, 20 (2009)
(emphasis added). Thus, even if we were to conclude that
§ 425.16 and Rule 12 serve similar purposes, at worst, a
motion to strike functions merely as a mechanism for
considering summary judgment at the pleading stage as is
permitted under Rule 12(d). See Fed. R. Civ. P. 12(d).

    California also has a state statutory equivalent to Rule 56.
See Cal. Civ. Proc. Code § 437c(c). (“The motion for
summary judgment shall be granted if all the papers
submitted show that there is no triable issue as to any material
fact and that the moving party is entitled to a judgment as a
matter of law.”). And as already explained, the test for legal
sufficiency embodied in § 425.16 conflicts with neither Rule
12 nor Rule 56.

    The Supreme Court’s decision in Cohen v. Beneficial
Industrial Loan Corp., 337 U.S. 541 (1949), is instructive. In
Cohen, the Supreme Court determined that a New Jersey
statute that required certain plaintiffs to post a bond in
shareholder derivative suits could be enforced consistent with
10            MAKAEFF V. TRUMP UNIVERSITY

former Federal Rule 23 (now Rule 23.1). 337 U.S. at 557.
New Jersey enacted the statute at issue in Cohen to protect
against so called “strike suits,” that is, suits “brought not to
redress real wrongs, but to realize upon their nuisance value.”
Id. at 547–48. The Court recognized that former Rule 23
“deals with plaintiff’s right to maintain such an action in
federal court,” and places certain requirements on shareholder
derivative suits, including that the stockholder’s complaint be
verified by oath and show that the plaintiff was a stockholder
at the time of the transaction at issue, and that the action not
be dismissed without approval of the court and notice to all
parties. Id. at 556. However, former Rule 23, like current
Rule 23.1, did not provide that a shareholder derivative suit
“may be maintained” if the requirements were met. Instead,
it set forth minimum requirements that were prerequisites—
necessary, but not necessarily sufficient—to maintain a suit.
Despite the fact that the state statute created an additional and
indeed onerous requirement for the maintenance of a
shareholder derivative suit, the Court determined that the
state statute did not conflict with the requirements of Rule 23
and therefore should apply in federal court.

     Just as the New Jersey statute in Cohen sought to limit
frivolous strike suits, California’s anti-SLAPP statute seeks
to limit frivolous suits brought primarily for the purpose of
chilling the valid exercise of First Amendment rights. And,
just as the state statute in Cohen did not conflict with former
Rule 23 even though it created supplemental, even onerous
requirements for certain plaintiffs, the motion to strike and
attorneys’ fees provisions of California’s anti-SLAPP statute
do not conflict with Rules 12 and 56 even though they create
supplemental requirements for certain plaintiffs.
                 MAKAEFF V. TRUMP UNIVERSITY                              11

    California’s interest in securing its citizens’ free speech
rights also cautions against finding a direct collision with the
Federal Rules. In Shady Grove, a majority of the justices
recognized that state interests are significant, even in
determining whether there is a conflict. 559 U.S. at 421 n.5
(Stevens, J., concurring in part and concurring in the
judgment) (indicating that he agreed with the four dissenting
justices that the Federal Rules must be interpreted in light of
considerations including “sensitivity to important state
interests”). Indeed, in Godin, the First Circuit thoroughly and
persuasively analyzed Shady Grove before concluding that
Maine’s anti-SLAPP law was enforceable in federal court.
629 F.3d at 86–91.

    Where there is no direct collision between a Federal Rule
and a state statute, we must make the “typical, relatively
unguided Erie Choice.” Hanna v. Plumer, 380 U.S. 460, 471
(1965). Every circuit that has considered the issue has agreed
with our conclusion in Newsham that anti-SLAPP statutes
like California’s confer substantive rights under Erie.3 If we


  3
    See Liberty Synergistics Inc. v. Microflo Ltd., 718 F.3d 138, 144–48
(2d Cir. 2013) (“[T]he aspects of California’s anti-SLAPP rule considered
substantive by federal law continue to apply in this case . . . . 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 constitutionally protected activity.”); Godin, 629 F.3d at
87–88 (“[W]e hold that the dual purposes of Erie are best served by
enforcement of [Maine’s anti-SLAPP statute] in federal court. . . . Maine
has not created a substitute to the Federal Rules, but instead created a
supplemental and substantive rule to provide added protections, beyond
those in Rules 12 and 56, to defendants who are named as parties because
of constitutional petitioning activities.”); Henry v. Lake Charles Am.
Press, L.L.C., 566 F.3d 164, 168–69 (5th Cir. 2009) (“Louisiana law,
including the nominally-procedural [Louisiana anti-SLAPP] statute,
governs this diversity case.” (citing Newsham, 190 F.3d at 972–73)).
12              MAKAEFF V. TRUMP UNIVERSITY

had taken this appeal en banc, and decided the other way (as
our colleagues advocate in their concurrences), we would
have created an inter-circuit split; a result at odds with Rule
35 of the Federal Rules of Appellate Procedure.

                                   II.

    Our colleagues also want us to overrule Batzel—not
because of any intervening Supreme Court decision or
conflicting circuit opinion, but because they find Batzel’s
reasoning “unpersuasive.”4 In Batzel, we held that the denial
of an anti-SLAPP motion to strike is immediately appealable
under the collateral order doctrine. 333 F.3d at 1024–26. For
the collateral order doctrine to apply, 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 effectively unreviewable on appeal from
a final judgment.” Will v. Hallock, 546 U.S. 345, 349 (2006)
(internal quotation marks omitted). In the dissent’s view, the
denial of an anti-SLAPP motion to strike fails the second and
third prongs of the test.




  4
     Judge Paez’s concern over the “significant state-by-state variations
within the circuit” regarding whether the denial of an anti-SLAPP motion
is immediately appealable, Makaeff v. Trump Univ., LLC, 715 F.3d 254,
275 (9th Cir. 2013) (Paez, J., concurring, and Kozinski, C.J., concurring),
ignores our instruction that although the state “statutes have common
elements, there are significant differences as well, so that each state’s
statutory scheme must be evaluated separately,” Metabolic Research, Inc.
v. Ferrell, 693 F.3d 795, 799 (9th Cir. 2012). For instance, in Ferrell we
concluded that Nevada’s anti-SLAPP statute did not satisfy the collateral
order doctrine because “its underlying values and purpose are satisfied
without resort to an immediate appeal.” Id. at 800–01.
                MAKAEFF V. TRUMP UNIVERSITY                          13

    In Batzel, we determined that a denial of an anti-SLAPP
motion resolves a question separate from the merits in that
the purpose of an anti-SLAPP motion is to determine whether
a party suffers harassment by the prosecution of a frivolous
lawsuit designed to chill otherwise constitutionally-protected
expressive conduct. 333 F.3d at 1024–25. In contrast, the
question on the merits is whether the defendant is ultimately
liable for defamation (or whatever the underlying claim might
be). Id. at 1025.

    For example, here Tarla Makaeff sued Trump University
accusing it of, among other things, deceptive business
practices. Makaeff, 715 F.3d at 260. Trump University
counterclaimed, alleging that Makaeff’s letters and online
postings, written months prior to the filing of this action and
complaining of Trump University’s business practices,
constituted defamation. Id. Using California’s anti-SLAPP
law, Makaeff moved to strike Trump University’s defamation
counterclaim.5 Id. at 260, 270–71. Trump University’s
counterclaim was obviously designed to overwhelm Makaeff
by making it more burdensome and expensive for her to
pursue her deceptive business practices claims against Trump
University. Makaeff’s motion to strike concerned the
frivolity of Trump University’s allegation that her speech
about its deceptive business practices was defamatory; its
very purpose was to determine whether Trump University’s
counterclaim was designed to chill Makaeff’s valid exercise


 5
    We reversed the denial of the anti-SLAPP motion because the district
court erroneously concluded that Trump University was not a public
figure, and therefore was required to demonstrate actual malice. See New
York Times Co. v. Sullivan, 376 U.S. 254 (1964). Trump University may
ultimately demonstrate actual malice upon remand, however, this is a
demanding standard to meet.
14               MAKAEFF V. TRUMP UNIVERSITY

of her First Amendment rights.6 The issue adjudicated
through the mechanism of the motion to strike was not
whether Makaeff was liable for defamation because of her
statements condemning Trump University’s alleged deceptive
business practices—the question at the heart of Trump
University’s underlying counterclaim.7 Thus, while the
inquiry on the motion to strike may glance at the merits, its
central purpose is to provide an added statutory protection
from the burdens of litigation that is unavailable during the
ultimate merits inquiry.

    The Supreme Court has held that issues concerning
immunity from suit are often separate from the merits of the
underlying dispute in the litigation, even though part of the
traditional inquiry touches on the merits: whether a particular
constitutional right was clearly established at the time of the
alleged governmental misconduct. See, e.g., Mitchell v.
Forsyth, 472 U.S. 511, 527–28 (1985) (noting that a claim of


     6
      Like in Batzel, the anti-SLAPP inquiry here tested whether the
defamation claim was “brought to deter common citizens from exercising
their political or legal rights or to punish them for doing so.” 333 F.3d at
1024. That was the ultimate question. Assessments of whether Makaeff’s
allegedly defamatory statements were protected activity under § 425.16
or whether Trump University had a reasonable probability of prevailing
on its defamation claim were merely intermediate steps used to answer
that core inquiry—was Trump University’s defamation counterclaim filed
to chill Makaeff’s speech.
 7
    While the original action was Makaeff’s deceptive business practices
suit, the underlying action for purposes of the separateness inquiry under
the collateral order doctrine is Trump University’s defamation
counterclaim. If, arguendo, we compared the district court’s order
denying Makaeff’s anti-SLAPP motion to the merits of Makaeff’s
deceptive business practices claim, the divide separating those two is even
greater.
              MAKAEFF V. TRUMP UNIVERSITY                   15

qualified immunity “is conceptually distinct from the merits
of the plaintiff’s claim”); Abney v. United States, 431 U.S.
651, 659 (1977) (holding that denial of a claim of double
jeopardy immunity is separate from the question of whether
the defendant is guilty of the charged crime). As the Fifth
Circuit reasoned in its separability analysis concerning an
analogous Louisiana anti-SLAPP statute:

       The immunity decisions indicate that some
       involvement with the underlying facts is
       acceptable, as the Court has found the issue of
       immunity to be separate from the merits of the
       underlying dispute “even though a reviewing
       court must consider the plaintiff’s factual
       allegations in resolving the immunity issue.”

Henry, 566 F.3d at 175 (quoting Mitchell, 472 U.S. at 529).
In other words, an order can touch on the merits and still be
sufficiently separate from the merits to satisfy the
requirements of the collateral order doctrine. As we
concluded in Batzel, “[t]he purpose of an anti-SLAPP motion
is to determine whether the defendant is being forced to
defend against a meritless claim,” not to determine whether
the defendant actually committed the relevant tort. Batzel,
333 F.3d at 1025. The motion to strike thus “exists separately
from the merits of the defamation claim itself.” Id.
Furthermore, § 425.16 does not conflict with Johnson v.
Jones, 515 U.S. 304 (1995), because the “probability” inquiry
asks a purely legal question: “whether the facts alleged . . .
support a claim” that survives a motion to strike. Id. at 313
(internal quotation marks omitted). Unlike the sufficiency of
evidence inquiry at issue in Johnson, it does “not consider the
correctness of the plaintiff’s version of the facts.” Id.
16            MAKAEFF V. TRUMP UNIVERSITY

     Finally, the policy animating the separability requirement
favors our determination in Batzel that the motion to strike
inquiry is separable. As the Fifth Circuit observed in Henry,
the separability requirement furthers the purpose of the final
order rule “by preventing appeals on issues that will be
definitively decided later in the case.” 566 F.3d at 176.
However, issues that are decided before trial and then not
normally revisited, such as immunity, do not implicate this
concern. The denial of an anti-SLAPP motion is similar:
“although an [anti-SLAPP] motion looks to the plaintiff’s
probability of success, the court decides it before proceeding
to trial and then moves on.” Id.

    We recently reaffirmed the validity of Batzel in light of
the Supreme Court’s intervening decision in Mohawk
Industries, Inc. v. Carpenter, 558 U.S. 100 (2009). See DC
Comics v. Pac. Pictures Corp., 706 F.3d 1009 (9th Cir. 2013).
We remarked that Mohawk Industries redirected our focus
towards “whether delaying review would imperil a substantial
public interest or some particular value of a high order.” Id.
at 1015 (internal quotation marks and citations omitted).
Applying this rule, we held:

       [T]he denial of a motion to strike made
       pursuant to California’s anti-SLAPP statute
       remains among the class of orders for which
       an immediate appeal is available. This is
       especially so given the particular public
       interests that the anti-SLAPP statute attempts
       to vindicate. It would be difficult to find a
       value of a “high[er] order” than the
       constitutionally-protected rights to free speech
       and petition that are at the heart of
       California’s anti-SLAPP statute.            Such
                MAKAEFF V. TRUMP UNIVERSITY                          17

         constitutional rights deserve particular
         solicitude within the framework of the
         collateral order doctrine. The California
         legislature’s determination, through its
         enactment of the anti-SLAPP statute, that
         such constitutional rights would be imperiled
         absent a right of interlocutory appeal deserves
         respect. We must make particular efforts to
         accommodate the substantive aims of states
         when, as here, we entertain state law claims as
         a federal court sitting in diversity.

Id. at 1015–16 (second alteration in original; citation
omitted).

                                  III.

    Through anti-SLAPP laws, the legislatures of Arizona,
California, Guam, Hawaii, Nevada, Oregon, and Washington
have decided to impose substantive limitations on certain
state law actions. See Thomas R. Burke, Anti-SLAPP
Litigation App. B (2013) (listing the text of each state’s anti-
SLAPP statute). Refusing to recognize these limitations in
federal court is bad policy. If we ignore how states have
limited actions under their own laws, we not only flush away
state legislatures’ considered decisions on matters of state
law,8 but we also put the federal courts at risk of being swept

  8
     Notably, under the Rules Enabling Act, the Federal Rules of Civil
Procedure cannot “abridge, enlarge or modify any substantive right.”
28 U.S.C. § 2072(b). The failure to enforce the anti-SLAPP laws would
arguably enlarge state law causes of action and abridge state law speech
protections. See Shady Grove, 559 U.S. at 416–17 (Stevens, J., concurring
in part and concurring in the judgment) (agreeing that “there are some
state procedural rules that federal courts must apply in diversity cases
18              MAKAEFF V. TRUMP UNIVERSITY

away in a rising tide of frivolous state actions that would be
filed in our circuit’s federal courts. Without anti-SLAPP
protections in federal courts, SLAPP plaintiffs would have an
incentive to file or remove to federal courts strategic,
retaliatory lawsuits that are more likely to have the desired
effect of suppressing a SLAPP defendant’s speech-related
activities.9 Encouraging such forum-shopping chips away at
“one of the modern cornerstones of our federalism.” Hanna,
380 U.S. at 474 (Harlan, J., concurring).

                                * * *

     Newsham and Batzel were correctly decided. Every
circuit to consider these issues has agreed with our holdings
in these cases, concluding that similar anti-SLAPP provisions
apply in federal court and rulings on the motions are
immediately appealable. Our dissenting colleagues wanted
to take this case en banc to overrule Newsham, Batzel, and
their progeny, and, in so doing, create an inter-circuit split.
But our circuit has already held that citizens of the seven
jurisdictions within our circuit that have anti-SLAPP laws
should not be stripped of their state’s free speech protections
whenever they step inside a federal court.

    En banc review is not an opportunity for us to dig through
our circuit’s trove of opinions and call cases that we would


because they function as part of the State’s definition of the substantive
rights and remedies”).
 9
   See, e.g., Eliza Krigman, Yelp Pushes for Federal Anti-SLAPP Laws,
Politico (Jan. 4, 2013, 4:40 AM), http://www.politico.com/story/2013/01/
yelp-pushes-for-federal-anti-slapp-laws-85737.html (noting that a lawsuit
was filed in Virginia instead of the District of Columbia because Virginia
had no anti-SLAPP law).
              MAKAEFF V. TRUMP UNIVERSITY                     19

have decided differently. “We must recognize that we are an
intermediate appellate court,” Miller v. Gammie, 335 F.3d
889, 900 (9th Cir. 2003) (en banc), and that we should only
invoke the en banc process to secure or maintain uniformity
of our decisions or because a question of exceptional
importance is involved. See Fed. R. App. Proc. 35. Supreme
Court precedent does not require us to change course and the
majority of active judges in our court wisely refused to grant
en banc consideration.



WATFORD, Circuit Judge, joined by KOZINSKI, Chief
Judge, and PAEZ and BEA, Circuit Judges, dissenting from
the denial of rehearing en banc:

     In United States ex rel. Newsham v. Lockheed Missiles &
Space Co., 190 F.3d 963 (9th Cir. 1999), we held that
California’s anti-SLAPP statute must be applied in federal
court. Id. at 972–73. In Batzel v. Smith, 333 F.3d 1018 (9th
Cir. 2003), we compounded that mistake by holding that
litigants are entitled to take interlocutory appeals from rulings
on anti-SLAPP motions. Id. at 1024–26. Neither of those
decisions is consistent with controlling Supreme Court
precedent, and both warranted reexamination by the court
sitting en banc.

                                I

    The Supreme Court has long held that federal courts may
not apply state statutes that interfere with the operation of the
Federal Rules of Civil Procedure. In Hanna v. Plumer,
380 U.S. 460 (1965), the Court established the governing test.
“When a situation is covered by one of the Federal Rules,” a
20            MAKAEFF V. TRUMP UNIVERSITY

federal court must apply the Federal Rule, notwithstanding
the existence of a conflicting state statute. Id. at 471. The
Federal Rule governs so long as it “trangresses neither the
terms of the [Rules] Enabling Act nor constitutional
restrictions.” Id.; see also Sibbach v. Wilson & Co., 312 U.S.
1, 14 (1941); 19 Charles Alan Wright, Arthur R. Miller &
Edward H. Cooper, Federal Practice and Procedure § 4510,
p. 293 (2d ed. 1996). Only if the Federal Rule is inapplicable
or invalid must the court “wade into Erie’s murky waters.”
Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co.,
559 U.S. 393, 398 (2010).

    The Supreme Court’s recent decision in Shady Grove
sheds new light on how this conflict analysis should proceed.
That case concerned a challenge to a New York statute
precluding class certification of any action seeking penalties
or statutory minimum damages. Id. at 396–97 & n.1. The
Court held that the statute conflicted with Federal Rule of
Civil Procedure 23. The conflict arose because Rule 23 sets
out “a categorical rule entitling a plaintiff whose suit meets
the specified criteria to pursue his claim as a class action,”
while the New York statute “attempts to answer the same
question—i.e., it states that Shady Grove’s suit ‘may not be
maintained as a class action’ (emphasis added) because of the
relief it seeks.” Id. at 398–99. The Court found a conflict
between the two provisions because it viewed Rule 23 as
establishing an exclusive set of criteria governing class
certification that States may not supplement. See id. at
398–400.

    Viewed through Shady Grove’s lens, California’s anti-
SLAPP statute conflicts with Federal Rules 12 and 56. Taken
together, those rules establish the exclusive criteria for testing
the legal and factual sufficiency of a claim in federal court.
              MAKAEFF V. TRUMP UNIVERSITY                      21

See Makaeff v. Trump Univ., LLC, 715 F.3d 254, 274 (9th
Cir. 2013) (Kozinski, C.J., concurring) (“The Federal Rules
aren’t just a series of disconnected procedural devices.
Rather, the Rules provide an integrated program of pre-trial,
trial and post-trial procedures . . . .”). California’s anti-
SLAPP statute impermissibly supplements the Federal Rules’
criteria for pre-trial dismissal of an action.

    Let’s take the conflict with Rule 12 first. Rule 12
provides the sole means of challenging the legal sufficiency
of a claim before discovery commences. To survive a Rule
12(b)(6) motion to dismiss—the closest Rule 12 analog to an
anti-SLAPP motion to strike—the plaintiff must allege facts
stating a claim that is “plausible on its face.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007). This standard “does
not impose a probability requirement at the pleading stage.”
Id. at 556. Indeed, “a well-pleaded complaint may proceed
even if it strikes a savvy judge that actual proof of those facts
is improbable.” Id. (emphasis added); see also Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (“The plausibility standard
is not akin to a probability requirement . . . .” (internal
quotation marks omitted)).

    Any attempt to impose a probability requirement at the
pleading stage would obviously conflict with Rule 12. Yet
that is exactly what California’s anti-SLAPP statute does. It
bars an action from proceeding beyond the pleading stage
“unless the court determines that the plaintiff has established
that there is a probability that the plaintiff will prevail on the
claim.” Cal. Civ. Proc. Code § 425.16(b)(1) (emphasis
added). By forcing the plaintiff to establish that success is
not merely plausible but probable, the anti-SLAPP statute
effectively stiffens the Rule 12 standard for testing the legal
sufficiency of a claim. Just as the New York statute in Shady
22           MAKAEFF V. TRUMP UNIVERSITY

Grove impermissibly barred class actions when Rule 23
would permit them, so too California’s anti-SLAPP statute
bars claims at the pleading stage when Rule 12 would allow
them to proceed.

    Similar problems plague the interaction between
California’s anti-SLAPP statute and Rule 56. Motions to
strike almost invariably require consideration of matters
outside the pleadings, and in those circumstances the Federal
Rules state that “the motion must be treated as one for
summary judgment under Rule 56.” Fed. R. Civ. P. 12(d)
(emphasis added). Under Rule 56, a party is entitled to
summary judgment only “if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). Conversely, to avoid summary judgment, the non-
movant need only “designate specific facts showing that there
is a genuine issue for trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986) (internal quotation marks omitted).
The anti-SLAPP statute eviscerates Rule 56 by requiring the
plaintiff to prove that she will probably prevail if the case
proceeds to trial—a showing considerably more stringent
than identifying material factual disputes that a jury could
reasonably resolve in the plaintiff’s favor.

    Our decision in Metabolife International, Inc. v. Wornick,
264 F.3d 832 (9th Cir. 2001), further highlights the conflict
between the anti-SLAPP statute and Rule 56. California’s
anti-SLAPP statute mandates a stay of all discovery pending
the court’s resolution of a motion to strike. Cal. Civ. Proc.
Code § 425.16(g). In Metabolife, we held that “the
discovery-limiting aspects of § 425.16(f) and (g) collide with
the discovery-allowing aspects of Rule 56,” and we therefore
refused to apply the statute’s discovery provisions in federal
             MAKAEFF V. TRUMP UNIVERSITY                   23

court. Metabolife, 264 F.3d at 846 (internal quotation marks
omitted). At the same time, however, we allowed the motion-
to-strike regime to stand. As Chief Judge Kozinski has noted,
the resulting amalgamation of anti-SLAPP and Rule 56
procedures has “crippled” the anti-SLAPP statute, leaving us
with “a hybrid procedure where neither the Federal Rules nor
the state anti-SLAPP statute operate as designed.” Makaeff,
715 F.3d at 275 (Kozinski, C.J., concurring).

   In short, California’s anti-SLAPP statute creates the same
conflicts with the Federal Rules that animated the Supreme
Court’s ruling in Shady Grove. That intervening decision
should have led us to revisit—and reverse—our precedent
permitting application of state anti-SLAPP statutes in federal
court.

                              II

    Even if anti-SLAPP motions may be brought in federal
court, we should stop entertaining interlocutory appeals from
rulings on such motions. In Batzel, we held that interlocutory
appeals are authorized under the collateral order doctrine,
which applies only if three conditions are met. 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 effectively unreviewable on
appeal from a final judgment.” Will v. Hallock, 546 U.S. 345,
349 (2006) (internal quotation marks omitted); see also
Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009).
Orders granting or denying anti-SLAPP motions don’t satisfy
the second condition of this test, because California’s anti-
SLAPP statute requires courts to assess the merits of the
action when ruling on a motion to strike.
24            MAKAEFF V. TRUMP UNIVERSITY

    California’s anti-SLAPP statute states that a motion to
strike shall be granted “unless the court determines that the
plaintiff has established that there is a probability that the
plaintiff will prevail on the claim.” Cal. Civ. Proc. Code
§ 425.16(b)(1). In Batzel, we held that a ruling under this
provision involves a question completely separate from the
merits because “it merely finds that such merits may exist,
without evaluating whether the plaintiff’s claim will
succeed.” Batzel, 333 F.3d at 1025. Batzel’s reasoning on
this point is unpersuasive. A court cannot gauge the
probability of success on a claim without assessing the merits
of the claim itself. Such a predictive analysis may not
amount to deciding the claim on the merits, but there’s no
credible argument that it’s “completely separate from the
merits.” Will, 546 U.S. at 349 (emphasis added). For proof,
we need look no further than the panel’s opinion in this case,
which engages in an exhaustive analysis of the merits of
Trump University’s defamation claim. See Makaeff, 715 F.3d
at 261–71.

     The absence of an issue completely separate from the
merits is sufficient, without more, to preclude application of
the collateral order doctrine, since all three of the doctrine’s
conditions must be met. But hold on, some have objected,
that can’t be right. California’s anti-SLAPP statute is
intended to afford an immunity from trial, not just from
liability, and without the ability to take an immediate appeal
that immunity may well be lost. However, even if
California’s anti-SLAPP statute provides an immunity from
trial, as we concluded in Batzel, 333 F.3d at 1025–26, that
doesn’t make anti-SLAPP rulings immediately appealable.
(As Judge Paez has noted, we’ve held that similar anti-
SLAPP statutes in other States do not afford immunity from
trial and thus do not trigger application of the collateral order
              MAKAEFF V. TRUMP UNIVERSITY                    25

doctrine. See Makaeff, 715 F.3d at 276 (Paez, J., concurring).
That has added yet another layer of incoherence to our
circuit’s anti-SLAPP jurisprudence.)

     The Supreme Court has specifically resisted the notion
that all claims of a right to avoid trial satisfy the collateral
order doctrine’s requirements. In Will, the Court cautioned:
“Those seeking immediate appeal therefore naturally argue
that any order denying a claim of right to prevail without trial
satisfies the third condition. But this generalization is too
easy to be sound and, if accepted, would leave the final order
requirement of § 1291 in tatters.” 546 U.S. at 350–51. Thus,
even cases squarely presenting a claimed right not to stand
trial must be treated with skepticism. See Digital Equip.
Corp. v. Desktop Direct, Inc., 511 U.S. 863, 873 (1994).

   We should be skeptical here. The Supreme Court has
permitted immediate appeals of immunity rulings in part
because immunity questions generally involve issues distinct
from the merits and don’t require extensive factual inquiry.
For example, the Court has allowed immediate appeals of
absolute and Eleventh Amendment immunity determinations,
both of which turn on the legal status of the defendant. See
P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,
506 U.S. 139, 142–47 (1993); Nixon v. Fitzgerald, 457 U.S.
731, 741–43 (1982).

    Similarly, the Court has allowed immediate appeals of
many, but not all, qualified immunity determinations. Under
Harlow v. Fitzgerald, 457 U.S. 800 (1982), courts must
determine whether the law the defendant allegedly violated
was “clearly established.” Id. at 818. In holding that such
determinations are immediately appealable under the
collateral order doctrine, the Court stressed: “An appellate
26            MAKAEFF V. TRUMP UNIVERSITY

court reviewing the denial of the defendant’s claim of
immunity need not consider the correctness of the plaintiff’s
version of the facts, nor even determine whether the
plaintiff’s allegations actually state a claim. All it need
determine is a question of law . . . .” Mitchell v. Forsyth,
472 U.S. 511, 528 (1985) (plurality opinion) (emphasis
added).

    In cases where the qualified immunity inquiry strays
beyond a purely legal question, however, the Court has
refused to entertain immediate appeals. In Johnson v. Jones,
515 U.S. 304 (1995), the Court held that defendants asserting
qualified immunity may not appeal “a fact-related
dispute”—sufficiency of the evidence—under the collateral
order doctrine. Id. at 307. The Court later explained that
Johnson’s holding is rooted in separability concerns: “[I]f
what is at issue in the sufficiency determination is nothing
more than whether the evidence could support a finding that
particular conduct occurred, the question decided is not truly
‘separable’ from the plaintiff’s claim . . . .” Behrens v.
Pelletier, 516 U.S. 299, 313 (1996).

    This type of determination—“whether the evidence could
support a finding that particular conduct occurred”—is
exactly what California’s anti-SLAPP statute requires. To
assess the “probability that the plaintiff will prevail,” Cal.
Civ. Proc. Code § 425.16(b)(1), the reviewing court must
assess the strength of the evidence supporting the plaintiff’s
allegations. The statute clearly contemplates such a fact-
bound inquiry: “In making its determination, the court shall
consider the pleadings, and supporting and opposing
affidavits stating the facts upon which the liability or defense
is based.” § 425.16(b)(2). Indeed, in this very case the panel
characterized the anti-SLAPP inquiry as “inherently fact-
              MAKAEFF V. TRUMP UNIVERSITY                   27

intensive.” Makaeff, 715 F.3d at 271. Engaging in this
exercise under the collateral order doctrine is plainly at odds
with Johnson.

     The Court recognized in Johnson that denying immediate
appeals of qualified immunity decisions “threatens to
undercut the very policy (protecting public officials from
lawsuits)” that would ordinarily justify immediate appellate
review. Johnson, 515 U.S. at 317. But the Court concluded
that when the immunity issues are not distinct from the
merits, “precedent, fidelity to statute, and underlying
policies” do not permit interlocutory appeals. Id. Thus, even
if California’s anti-SLAPP statute confers a right not to stand
trial, that fact alone is not enough to satisfy the collateral
order doctrine’s requirements.

                     *        *         *

    Our circuit’s anti-SLAPP jurisprudence runs afoul of two
separate lines of Supreme Court precedent, both of which
involve matters fundamental to the operation of the federal
courts. We should have taken this case en banc to bring our
case law in line with Shady Grove and the Supreme Court’s
decisions establishing the proper scope of the collateral order
doctrine.
