In a March 11, 2014 decision involving an issue of first impression, NCDR, L.L.C. v. Mauze & Bagby, P.L.L.C., the US Court of Appeals for the Fifth Circuit held that the denial of a motion to dismiss brought under the Texas anti-SLAPP statute is immediately appealable under the collateral order doctrine (No. 12–41243, (5th Cir. Mar. 11, 2014)).

The defendant Mauze & Bagby, P.L.L.C. (M&B), a Texas law firm, engaged in a campaign to solicit former patients of dental clinics owned and operated by the plaintiffs (collectively referred to as Kool Smiles). M&B's campaign included advertisements claiming that Kool Smiles performed unnecessary and harmful dental work on economically disadvantaged children to obtain government reimbursements. In response, Kool Smiles filed suit against M&B, alleging Lanham Act violations and state law claims including defamation, business disparagement and injury to business reputation.

M&B moved to dismiss under the Texas Citizen's Participation Act (TCPA), the Texas anti-SLAPP statute. Under an anti-SLAPP statute like the TCPA, a claim may be dismissed when the defendant can show that it was brought to chill the exercise of First Amendment rights. The district court denied M&B's motion to dismiss and M&B appealed, invoking the collateral order doctrine as a jurisdictional basis. Kool Smiles challenged the Fifth Circuit's jurisdiction, arguing that the district court's determination of the TCPA motion was not immediately reviewable.

The Fifth Circuit held that a denial of a motion to dismiss under the TCPA is immediately appealable under the collateral order doctrine. In its decision, the court explained that to confer appellate jurisdiction over a non-final order of a district court, the order must:

The Fifth Circuit determined that the order denying M&B's TCPA motion to dismiss met all three of these conditions. First, the court held that the denial of a TCPA motion is conclusive as to whether the TCPA mandates dismissal of a case because if the motion to dismiss is denied, the case proceeds forward normally and the trial court does not revisit its decision on the motion.

Second, the court determined that an order resolving a TCPA motion to dismiss is separate from the merits of the case. To be separate, an issue must be conceptually distinct from the merits of a claim. The court explained that an anti-SLAPP motion resolves a question distinct from the merits because it merely finds that such merits may exist, but does not evaluate whether the plaintiff's claims will succeed.

Finally, the Fifth Circuit held that an order denying a motion to dismiss under the TCPA is effectively unreviewable on appeal. A defendant who brings a TCPA motion to dismiss seeks to avoid the burden of a trial. If the defendant were required to wait until the final judgment to appeal an unsuccessful TCPA motion to dismiss, a decision reversing the denial would not remedy the fact that the defendant was forced to defend against a meritless claim brought to chill First Amendment rights.

Counsel practicing in the Fifth Circuit should be aware that an order denying a motion to dismiss pursuant to the Texas anti-SLAPP statute is immediately appealable under the collateral order doctrine.