A couple of thoughts in addition to Jill Fisch’s guest post:
• I think I heard the Court as more favorable to the petitioner (state law does not apply) than Jill did. I expect the Court will not demand a 1:1 conflict between state law and a federal law, but will find state law precluded where a bunch of related FRCPs form a controlling cohesive whole. Kavanaugh’s questions (and Jackson, to a lesser extent) seemed to point in this direction. Kavanaugh adopted a that approach on the D.C. Circuit in ruling that anti-SLAPP motions do not apply in federal court.
• I wrote about the en banc Ninth Circuit holding that the denial of an anti-SLAPP motion is not immediately reviewable under the COD. Competing concurrences debated whether SLAPP statutes should apply in federal court (the Ninth Circuit is the outlier in saying yes). Arguing against application, Judge Bress criticized how the court had done the “crack-and-extract thing” to the SLAPP law, applying some provisions (the special motion) and not others (the automatic discovery stay). Berk‘s resolution may cause courts to change how they analyze SLAPP statutes, if not the ultimate question of whether they apply.
• Justices Kagan and Jackson questioned how to square the AoM requirement with a system of notice pleading. Justice Sotomayor argued that the affidavit introduces factual insufficiency, whereas the FRCP is concerned with legal insufficiency. In other words, an AoM demands facts and details at the outset, whereas the FRCP does not. This seems to ignore Twiqbal, which introduces a form of factual insufficiency and something different than what Conley/Swierkiewicz meant by notice pleading. These questions (and perhaps the opinion in the case) offer another example for Alex Reinert’s argument that the Court continues to apply notice pleading.