Federal courts have been split on whether heightened pleading and evidentiary standards established in state “anti-SLAPP” laws apply in defamation cases brought in federal court even though such standards are more stringent than those contained in Federal Civil Rules 8, 12, and 56. “SLAPP” is an acronym for Strategic Lawsuits against Public Participation. More than 30 states, including Kentucky, have adopted such laws, typically based on the Uniform Public Expression Protection Act (“UPEPA”). See KRS 454.400 et seq.
To date, at least the Second, Fifth, and Eleventh Federal Circuit Courts of Appeals have declined to apply state anti-SLAPP pleading standards in federal cases, while the First and Ninth Circuits have reached the opposite conclusion and applied the state standards. See, e.g., La Liberte v. Reid, 966 F.3d 79 (2d Cir. 2020). Cf. CoreCivic, Inc. v. Candide Group, LLC, 46 F.4th 1136 (9th Cir. 2022). The United States Supreme Court has not yet resolved this conflict.
However, a 2026 Supreme Court decision declining to apply a state law requiring the filing of an affidavit or certificate of merit with the complaint in a medical malpractice action in federal court suggests that such standards should not apply in federal courts. In Berk v. Choy, the Court unanimously held that such a heightened state pleading standard was inconsistent with Fed. R. Civ. P. 8, and under the Rules Enabling Act the Federal Rule in question displaces a contrary state law even if the state law could be deemed substantive rather than procedural. See Berk v. Choy, 607 U.S. —, 146 S.Ct. 546 (U.S. 2026).
Litigators considering whether to bring claims in state or federal court when state law imposes a higher pleading or evidentiary burden than federal rules should be mindful of these holdings.
NOTE: This post contains commentary from the forthcoming 2026 edition of 6 Kentucky Practice, Rules of Civil Procedure Annotated, by David V. Kramer, with permission of the author and publisher. Copyright (c) 2026 Thomson Reuters. For more information about this publication, click here.
If you have questions about how recent court decisions may affect litigation strategy, forum selection, or procedural requirements in federal and state court, contact David Kramer or a member of DBL Law’s Litigation & Dispute Resolution Practice Group.
