“This is the way the world ends, not with a bang but a whimper.” – T.S. Eliot[1]

When Harold Berk fell out of bed during a trip to Delaware and ended up with a severely deformed ankle after an alleged botched hospital visit,[2] he probably did not imagine that his malpractice lawsuit would become a vehicle for the U.S. Supreme Court to reiterate one of its most consequential principles about the nature of federal civil procedure. In Berk v. Choy,[3] the Supreme Court held that Delaware’s “affidavit of merit” requirement for medical malpractice lawsuits is inapplicable in federal court.[4] Justice Amy Coney Barrett’s opinion is a study in unassuming simplicity; it is the kind of judicial writing that seems almost obvious in retrospect, until one realizes how much it likely, quietly, forecloses.[5] But such is the irony and drama inherent in life. Again, on a seemingly unassuming day, a man fell out of his bed somewhere in Delaware,[6] but the butterfly effect[7] of that fall, this article contends, will likely reverberate in diversity jurisdiction cases in federal courts across America for years to come.

Berk’s facts are straightforward. Mr. Berk sued Dr. Wilson Choy and Beebe Medical Center for negligence.[8] Under Delaware law, such a suit cannot proceed unless accompanied by an affidavit from a medical professional attesting to its merit. Mr. Berk, despite a good-faith effort, could not produce one in time.[9] The question on certiorari review was whether this Delaware gatekeeping mechanism could operate in federal court, where Mr. Berk had filed his negligence lawsuit based on diversity of citizenship original jurisdiction.[10]

The Supreme Court said no. The affidavit of merit requirement was inapplicable in federal court.[11] More importantly, the court explained why in a manner that likely has (as most Supreme Court cases often do) significant implications extending well beyond certificates of merit – implications that should give pause to anyone who has assumed that state anti-SLAPP[12] statutes occupy some special exemption from the ordinary rules governing federal procedure.

THE BERK V. CHOY FRAMEWORK

Berk applied a familiar framework. State law claims in state court usually implicate state law.[13] But when the parties are from different states, the amount at issue exceeds $75,000, and the case is pending in federal court, those courts must apply state substantive law and federal procedural law.[14] To that end, “when a Federal Rule of Civil Procedure is on point,” the court explained, “a federal court bypasses Erie’s inquiry altogether.”[15] This is because, the court said, “the Rules Enabling Act, which authorizes the Supreme Court to adopt uniform procedural rules for federal district courts, provides for the application of federal law.”[16] A valid federal rule, therefore, “displaces contrary state law even if the state law would qualify as substantive under Erie’s test.”[17] The analysis proceeds in two steps. First: Does a Federal Rule of Civil Procedure “answer[ ] the question in dispute”?[18] If so, second: the federal rule “governs,” unless it “exceeds statutory authorization or Congress’s rulemaking power.”[19] A federal rule is valid if it “really regulates procedure,” and if it does, “the substantive nature of [a state] law or its substantive nature makes no difference.”[20] The court said it has never invalidated a Federal Rule of Civil Procedure, and it made clear in Berk that it was not about to break that streak.[21]

What Berk emphasized is that when asking whether a federal rule answers the disputed question, a federal court must take the rule’s “plain meaning” as controlling.[22] To begin with, Federal Rule of Civil Procedure 8 requires “a short and plain statement of the claim showing that [the pleader] is entitled to relief.”[23] Rule 12, in turn, provides the only merit-based ground for dismissal – based on a “failure to state a claim upon which relief can be granted” – and it prohibits courts from considering “matters outside the pleadings” when evaluating the question of dismissal.[24]

By contrast, Delaware’s affidavit requirement, the court held, “gives different answers to the question” of what a plaintiff must provide at the pleading stage in order to keep their case alive.[25] While Rule 8 requires only a statement of the claim, Delaware’s law demands evidence at the pleading stage – “a prima facie evidentiary requirement,” as the Delaware courts describe it.[26] Thus, Berk found that the conflict was direct and real.[27]

What makes Berk so significant is what the court said about the nature of this conflict and the impossibility of accommodation. The defendants tried a workaround: They proposed to the Supreme Court rewriting Delaware’s law to function not as “a pleading requirement” but as a “free-floating evidentiary requirement” that could justify early dismissal.[28] But the Supreme Court’s response was a firm no. Even if one accepted such “creative license” with state law, the court reasoned that “there would be no way to enforce such a requirement” under the Federal Rules of Civil Procedure.[29] The defendants conceded that the absence of an affidavit is not grounds for dismissal under Rule 12(b)(6). What’s more, Federal Rule of Civil Procedure 56 already prescribes the “mechanism for putting a plaintiff to his proof: a motion for summary judgment.”[30]

Here is the crucial point for the reader: The court said the Federal Rules of Civil Procedure already occupy the field.[31] Those rules already answered the question of how and when a plaintiff can be put to their proof. Rule 8 defines pleading sufficiency. Rule 12 defines motions to dismiss, which are allegations-based dismissal mechanisms. Rule 56, in turn, defines summary judgment, which is an evidence-based dismissal motion.[32] Thus, a state law that purports to impose a different standard – whether styled as a pleading requirement, an evidentiary threshold or a gatekeeping mechanism – necessarily conflicts with this comprehensive federal procedural scheme.[33]

The Supreme Court invoked Burlington Northern R. Co. v. Woods[34] for the proposition that a federal rule can displace state law when it “occupies the statute’s field of operation.”[35] This language of field occupation is important. Under longstanding federal preemption principles, once federal law occupies a field, even complementary state legislation is impermissible.[36] The reasoning in the Supreme Court’s preemption cases is this: if a given federal scheme represents a considered judgment about how the relevant regulatory framework should operate, and state variations – even well-intentioned ones – introduce dissonance into this uniform system.[37]

THE FIELD IS OCCUPIED: HOW BERK COULD DISPLACE ANTI-SLAPPS

This, then, brings us to state anti-SLAPP statutes and to what Berk quietly (and likely) telegraphed about their fate in diversity jurisdiction cases. This is likely true for three reasons. First, the Supreme Court has long held that its reasoning in its opinions – the ratio decidendi – applies beyond the immediate facts of the case at hand. It is that reason-for-the-rule that is binding in other cases.[38] Second, nearly every federal court of appeals, following Justice Antonin Scalia’s lead, holds that the mode of analysis announced in Supreme Court opinions is binding.[39] Third, some circuits, especially the 10th Circuit, hold that they are bound by Supreme Court dicta just as much as the holding itself.[40] Thus, altogether, whichever way one dices Berk – whether applying its ratio decidendi, its mode of analysis or what some would consider its dicta – in the 10th Circuit (and its attendant lower courts) at least, the case applies beyond the affidavit of merit.

Enter anti-SLAPP statutes. Anti-SLAPP laws – statutes designed to protect defendants from “strategic lawsuits against public participation” – have proliferated across the states.[41] Anti-SLAPP laws typically allow a defendant to bring an early dismissal motion when a plaintiff’s lawsuit targets conduct arising from the defendant’s exercise of free speech rights.[42] Most would likely say, so far, so good – who could object to protecting First Amendment activity from retaliatory litigation? The problem, almost always, is in the details, specifically how state anti-SLAPP laws operated.

Most anti-SLAPP statutes share four common elements. First, anti-SLAPP statutes impose an evidentiary burden at the pleading stage: A plaintiff must establish a likelihood of success on the merits by demonstrating a prima facie case with admissible evidence.[43] Second, anti-SLAPP statutes alter the standard of review: Rather than taking the plaintiff’s factual allegations as true, courts applying anti-SLAPP statutes must do away with that presumption and instead hold a plaintiff to their prima facie case burden.[44] Third, most anti-SLAPP statutes, including Oklahoma’s, provide for early dismissal based on this evidentiary showing (or lack thereof) before any discovery has occurred.[45] Fourth, anti-SLAPP statutes typically give a movant an immediate right to appeal a denial of a dismissal motion contrary to established practice in federal court for most allegations or evidence-based dismissal motions.[46]

When applicable, anti-SLAPP laws fast-track dismissal motions and impose procedural burdens on civil litigants. Oklahoma’s anti-SLAPP statute, the Oklahoma Citizens Participation Act (OCPA), is a “broad” statute aimed “at protecting a wide spectrum of First Amendment speech, with limited exceptions.”[47] The trigger for the statute is a lawsuit that “is based on, relates to, or is in response to ... [a moving party’s] exercise of the right of free speech, the right to petition, or the right of association.”[48] This requirement, Oklahoma courts have said, extends the “reach of the OCPA” to “any tort involving speech.”[49] Important still, the speech or communication at issue should relate to a matter of public concern.[50] The OCPA defines a matter of public concern to include, among other things, any matter related to “economic or community well-being” or “health and safety.”[51] When the OCPA is applicable, the initial burden is on the party seeking dismissal to show that the lawsuit is based on or relates to First Amendment rights.[52] Once the movant clears their First Amendment rights threshold, the burden then shifts to the nonmovant to show “by clear and specific evidence a prima facie case for each essential element of the claim in question.”[53] If a prima facie case is shown, then the burden shifts to the movant to establish a defense – but not one based on disputed facts.[54]

APPLYING BERK: ANTI-SLAPPS AND THE FEDERAL RULES’ POSSIBLE CONFLICT

After Berk, the conflict between these anti-SLAPP law features and the federal rules will likely strike many as unavoidable. Indeed, this will likely be true with rules 8, 12, 26 and 56. After Berk, as this article tries to show later, the continued application of anti-SLAPPs in federal court is debatable.

Start with Federal Rule of Civil Procedure 8. Berk held that Rule 8 sets “a ceiling on the information that plaintiffs can be required to provide about the merits of their claims” at the outset of litigation.[55] Delaware’s affidavit requirement violated this ceiling by demanding more: demanding evidence, not just a statement of the claim, at the pleading stage.[56] Anti-SLAPP statutes appear to do the same thing. As noted, anti-SLAPPs require a plaintiff to produce evidence – to make out a prima facie case – at a stage when the federal rules demand only a short and plain statement.[57] Indeed, the defendants in Berk tried to distinguish the affidavit requirement by arguing that it was a “precondition to proceeding” rather than a pleading requirement. But the Supreme Court rejected this gambit. “Describing the affidavit requirement as a precondition to proceeding does not magically dispel the conflict.”[58] To be sure, anti-SLAPP statutes likely face the same problem. Whether one styles the requirement as a “special motion to dismiss” or a “precondition to proceeding,” just as the defendant in Berk, the substance is the same: The plaintiff must do more than plead. They must bring evidence at the pleading stage, and in Berk’s words, that would appear to straightforwardly conflict with Rule 8.[59]

Consider Rule 12 next. Berk emphasized that Rule 12(b)(6) provides the “only ground for dismissal based on the merits” at the pleading stage in federal court and that Rule 12(d) prohibits courts from considering “matters outside the pleadings” when evaluating a motion to dismiss.[60] Thus, under this framework, a federal court need only ask whether the complaint’s factual allegations, taken as true, “state a claim to relief that is plausible on its face.”[61] But anti-SLAPP statutes would seem to upend this scheme entirely. They require courts to consider matters outside the pleadings – affidavits, declarations and evidence of probability of success.[62] Anti-SLAPP laws do not take the plaintiff’s allegations as true; they focus on the evidence and whether it meets the prima facie threshold.[63] Indeed, anti-SLAPP statutes permit dismissal not because the plaintiff has failed to state a claim but because the plaintiff has failed to marshal sufficient evidence to establish their prima facie case. Justice Ketanji Jackson’s concurrence made this point with force: A state law that requires judges to “account for a matter outside the pleadings ... when deciding whether to dismiss” a case directly conflicts with Rule 12(d).[64]

Berk likely also makes a conflict between anti-SLAPP statutes and Rule 26 unavoidable. By their design and operation, anti-SLAPP statutes impose a discovery moratorium as soon as the dismissal motion is filed.[65] That means, unless a district court, in its discretion, finds good cause to permit discovery, the target of an anti-SLAPP statute’s evidence-based motion must make do without a guarantee of discovery.[66] The Federal Rules of Civil Procedure, by contrast, provide for discovery when a nonmovant faces the prospect of an evidence-based dismissal motion.[67] Thus, the two laws function differently. That explains why long before Berk, nearly every federal court of appeals that applied anti-SLAPP statutes permitted discovery.[68] What the lower federal appellate courts had telegraphed, Berk’s reasoning now likely confirms.

Finally, consider Rule 56. Berk made clear that the Federal Rules of Civil Procedure already prescribe “the mechanism for putting a plaintiff to his proof: a motion for summary judgment.”[69] Before ruling on such a motion, “the court must allow the nonmovant adequate time for discovery.”[70] Important still, during a Rule 56 evidence-based dismissal motion, a federal court must consider the facts in the light most favorable to the nonmovant.[71] By contrast, anti-SLAPPs, including Oklahoma’s, have no similar presumption; everything depends on whether the nonmovant has established a prima facie case.[72] Moreover, and as noted, anti-SLAPP statutes differ from Fed. R. Civ. P. 56 because they require the plaintiff to make an evidentiary showing before discovery – indeed, anti-SLAPP statutes typically stay discovery pending resolution of the anti-SLAPP motion. By contrast, Rule 56 has a strong preference for discovery for evidence-based dispositive motions.[73] In fact, this (preference for discovery during evidence-based motions) is a policy choice that the federal rules have already made, which Berk holds must be respected in diversity jurisdiction cases to avoid injecting dissonance in federal court practice.[74]

But some federal courts have insisted on applying anti-SLAPP statutes in diversity jurisdiction cases, reasoning that such statutes are “substantive” because they create a right to avoid the burdens of litigation.[75] After Berk, it is questionable whether this analysis still holds true. Berk, after all, applied a robust conflict analysis: The question is no longer whether a state law (in this case, an anti-SLAPP statute) has substantive purposes or effects. The court emphasized that as long as a federal rule is “on point,” and it “really regulate[s] procedure,” in the manner of disposing claims, then “the substantive nature of [a state] law, or its substantive purpose, makes no difference” to the overall conflict analysis.[76] The question is whether a federal rule answers the same question that the state law addresses. If it does, and if that rule is valid (which it almost inevitably always is), then the state law is displaced.[77]

To recap the analysis so far, anti-SLAPP statutes likely answer differently the same questions as rules 8, 12, 26 and 56. They appear to address what a plaintiff must show at the pleading stage (Rule 8 says: a short and plain statement; anti-SLAPPs say: a prima facie case). Anti-SLAPP statutes address on what grounds a complaint (or petition) may be dismissed before an answer (Rule 12 says: failure to state a claim, with allegations taken as true; anti-SLAPPs say: failure to establish a prima facie case with evidence). The anti-SLAPP statutes also address when a plaintiff can be put to their proof (Rule 56 says: after adequate opportunity for discovery, with facts viewed in the light most favorable to the nonmovant; anti-SLAPPs say: before discovery, under a stay, with no presumption to view the facts in the light most favorable to the nonmovant). The likelihood of a conflict between the two laws appears high.

POLICY CONCERNS LIKELY DO NOT DISPLACE AN ON-POINT FEDERAL PROCEDURAL RULE

Berk adhered to its holding notwithstanding compelling policy objections. The court acknowledged that Delaware’s affidavit requirement served genuine policy goals – screening frivolous malpractice suits, reducing the cost of malpractice insurance and protecting the health care system.[78] But even then, the Supreme Court still held that such policy considerations are irrelevant to the analysis. “The substantive purpose” of the state law, the court said, “makes no difference.”[79] What matters, said the Supreme Court, is whether a valid and on-point Federal Rule of Civil Procedure governs the manner and means of enforcing rights.[80] In a similar vein, courts have long recognized that state anti-SLAPP statutes serve important First Amendment values.[81] Those statutes, courts have held, protect speakers from being chilled by the threat of meritless litigation.[82] But Berk now likely forecloses this argument. If a Federal Rule of Civil Procedure is “on point,” and its main purpose is to facilitate the orderly processing of a claim pending in federal court, then it is a valid procedural rule.[83] That means, and Berk appears to make this clear, such a procedural federal rule should control, notwithstanding a complementary state analogue, whether it was designated as a substantive or procedural rule.[84]

That is not to say that the plaintiff in federal court is free to pursue baseless and abusive litigation. As Judge Bobby Baldock of the 10th Circuit has warned those litigants who might wish to exploit this perceived enforcement gap: By their design and operation, the Federal Rules of Civil Procedure are primed for dealing with frivolous litigation.[85] Rule 11 permits sanctions for baseless filings.[86] Rule 12(b)(6) permits dismissal of implausible alleged claims.[87] Rule 56 permits summary judgment when the plaintiff cannot make out their case after discovery.[88]

THE WHIMPER (ALMOST) NO ONE HEARD COMING

Harold Berk’s case was not about free speech. It was about an alleged broken ankle, a botched fitting and a missing affidavit.[89] Yet the principle the Supreme Court announced in Berk in resolving Mr. Berk’s dispute likely reaches far beyond medical malpractice affidavits of merit. Berk holds that when the Federal Rules of Civil Procedure answer a procedural question, they answer it for everyone who walks through the federal courthouse doors.[90] Because of Berk, for anti-SLAPP statutes in federal court, this may be how the world ends – not with a bang but with a whimper that (almost) no one heard coming.

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ABOUT THE AUTHOR

Mbilike M. Mwafulirwa is a leader in continuing legal education, known for creating innovative, thought-provoking programming. A partner at Coffey, Senger, Hancock & Harmon, he co-chairs the Tulsa County Bar Association Bench & Bar Committee. He also teaches at the TU College of Law on artificial intelligence and the legal profession, equipping attorneys to navigate a rapidly evolving landscape.

 

 

 

 

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ENDNOTES

[1] T.S. Eliot, The Hollow Men (1925).

[2] See Berk v. Choy, 607 U.S. __, 146 S.Ct. 546, 551 (2026).

[3] Id.

[4] Id.

[5] See generally id.

[6] Id.

[7] “The butterfly effect describes the compounding effect of a minor errors, which can amplify one another over time and eventually cause major damage.” Escobedo v. Ace Gathering, Inc., 2024 WL 5443121, at *3 n. 3 (5th Cir. Sept. 30, 2024) (Oldham, J., dissenting from denial of rehearing en banc).

[8] See Berk, 146 S.Ct. at 551.

[9] Id. at 551-52.

[10] Id. at 551.

[11] Id.

[12] The acronym “SLAPP” stands for “strategic lawsuits against participation.” See Mbilike M. Mwafulirwa, “Suing on Shifting Sands: The Oklahoma Constitution, Retroactive Legislation and the Scramble for Clarity,” 88 OBJ. 935 (May 20, 2017) (citations omitted).

[13] See Berk, 146 S.Ct. at 552 (“State-law claims are usually brought in state court.”).

[14] Id.

[15] Id. Erie refers to Erie R.R. v. Tompkins, 304 U.S. 64 (1938). “In diversity cases, the Erie doctrine instructs that federal courts must apply state substantive law and federal procedural law.” Racher v. Westlake Nursing Home Ltd. P’ship, 871 F.3d 1152, 1162 (10th Cir. 2017) (applying Oklahoma law).

[16] Berk, 146 S.Ct. at 552 (citing 28 U.S.C. §2072(a)).

[17] Id. (emphasis added).

[18] Id.

[19] Id.

[20] Id. at 556 (quoting Sibbach v. Wilson & Co., 312 U.S. 1, 14 (1941)).

[21] Id.

[22] See Berk, 146 S.Ct. at 552.

[23] Id.; see also Fed. R. Civ. P. 8 (a)(2).

[24] See Berk, 146 S.Ct. at 553; Fed. R. Civ. P. 12(b)(6) and (d).

[25] See Berk, 146 S.Ct. at 553.

[26] Id.

[27] Id.

[28] Id. at 555.

[29] Id.

[30] Id.

[31] Id. at 552; see also Va. Uranium, Inc. v. Warren, 587 U.S. 761, 774, 775 (2019) (Plurality Op.) (listing “civil procedure” in federal court as an example of the court applying its “modern field preemption doctrine”); accord id. at 781 (Ginsburg, Kagan and Sotomayor, JJ., concurring) (agreeing with lead opinion on that issue).

[32] See Berk, 146 S.Ct. at 554-55.

[33] See id.

[34] 480 U.S. 1, 7-8 (1987).

[35] See Berk, 146 S.Ct. at 553.

[36] E.g., Arizona v. United States, 567 U.S. 387, 399, 401 (2012) (holding that when a federal occupies a field, “even complementary state regulation is impermissible”) (emphasis added).

[37] See Hanna v. Plumer, 380 U.S. 460, 472-73 (1965) (Congress enacted the Federal Rules of Civil Procedure to promote an important federal interest of ensuring uniformity of proceedings in federal court); Burlington N. R.R. Co. v. Woods, 480 U.S. 1, 5-7 (state law had to yield because it disrupted the mode of operation of a controlling federal rule).

[38] Ramos v. Luisiana, 590 U.S. 83, 104 (2020) (Plurality Op.) (It is, after all, the “ratio decidendi – that allows ... [a judicial opinion] to have life and effect in the disposition of future cases.”) (emphasis added); Bucklew v. Precythe, 587 U. S. 119, 136 (2019) (the ratio – “the reasoning underlying” the holding – is “just as binding as [the] holding.”) (emphasis added); see also In re Est. of Bleeker, 2007 OK 68, ¶14, n. 25, 168 P.3d 774, 781 (“The ratio decidendi of a case is any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion.”) (emphasis added).

[39] See Stokes v. Sw. Airlines, 887 F.3d 199, 204 (5th Cir. 2018); see also Antonin Scalia, “The Rule of Law as a Law of Rules,” 56 U. Chi. L. Rev. 1175, 1177 (1989) (lower courts are bound by a higher appellate court’s mode of analysis); accord Kivett v. Flagstar Bank, FSB, 154 F.4th 640, 645 (9th Cir. 2025); United States v. Brooks, 751 F.3d 1204, 1209 (10th Cir. 2014) (circuit precedent is not binding “when the Supreme Court issues an intervening decision that is contrary to or invalidates our previous analysis.”) (cleaned up).

[40] See, e.g., Dine Citizens Against Ruining Our Env’t v. Jewell, 839 F.3d 1276, 1282 (10th Cir. 2016) (“[W]e have said that this court considers itself bound by Supreme Court dicta almost as firmly as by the Court's outright holdings, particularly when the dicta is recent and not enfeebled by later statements.”) (emphasis added).

[41] Anagnost v. Tomacek, 2017 OK 7, ¶8, 390 P.3d 707, 710; Krimbill v. Talarico, 2018 OK CIV APP 37, ¶5, 417 P.3d 1240, 1244-45.

[42] See Krimbill, 2018 OK CIV APP 37, ¶14, 439 P.3d at 1246.

[43] Id. ¶11, 439 P.3d at 434-35; see also 12 O.S. §1434 (c).

[44] See 12 O.S. §1434 (c) compare with Fed. R. Civ. P. 12 (b)(6) and (c); cf. Anderson v. Wilken, 2016 OK CIV APP 35, ¶4, 377 P.3d 149, 151 (in an anti-SLAPP motion, “none of these standards” – i.e., taking facts alleged as true – “apply”).

[45] See 12 O.S. §1432(C); id. §1435 (B).

[46] See 12 O.S. §1437 (right to immediate appeal) contrast with Anderson, 2016 OK CIV APP 35, ¶6, 377 P.3d at 151 (a denial of a motion to dismiss is not appealable); Van Cauwenberghe v. Biard, 486 U.S. 517, 529 (1988) (order denying motion to dismiss is not appealable).

[47] Krimbill v. Talarico, 2018 OK CIV APP 37, ¶8, 417 P.3d 1240, 1245.

[48] Id. (quoting 12 O.S. §1434(B)) (emphasis added).

[49] Id. ¶28, 417 P.3d at 1248 (emphasis added) (cleaned up).

[50] 12 O.S. §§1431(3), 1432.

[51] Id. §§1431(7)(a-b) (emphasis added).

[52] Krimbill, 2018 OK CIV APP 37, ¶8, 417 P.3d at 1245 (Oklahoma’s statute is “directed at protecting a wide spectrum of First Amendment speech, with limited exceptions.”); accord Lewis v. Corrente, 2020 OK CIV APP 45, ¶18, 473 P.3d 531, 535.

[53] Krimbill, 2018 OK CIV APP 37, ¶8, 417 P.3d at 1245; 12 O.S. §1434(c).

[54] S.W. Orthopaedic Spec. P.L.L.C. v. Allison, 2018 OK CIV APP 69, ¶13, 439 P.3d 430, 434 (A “dismissal based on a defense may be obtained only if the defense is one of law, not one requiring the court to [d]ecide disputed facts.”) (cleaned up).

[55] Berk, 146 S.Ct. at 553-54.

[56] Id. at 554.

[57] See 12 O.S. §1434(c) compare with Fed. R. Civ. P. 12 (b)(6) and (c); cf. Anderson, 2016 OK CIV APP 35, ¶4, 377 P.3d at 151 (in an anti-SLAPP motion, “none of these standards” – i.e., taking facts alleged as true – “apply”).

[58] Berk, 2026 WL 135974, at *5 (cleaned up).

[59] Id.; Fed. R. Civ. P. 12 (b)(6) and (c); contrast with 12 O.S. §1434(c).

[60] Berk, 146 S.Ct. at 553.

[61] Id.

[62] See 12 O.S. §1434 (B); id. §1435 (A).

[63] See 12 O.S. §1434(c) compare with Fed. R. Civ. P. 12 (b)(6) and (c); cf. Anderson, 2016 OK CIV APP 35, ¶4, 377 P.3d at 151 (in an OCPA motion, “none of these standards” – i.e., taking facts alleged as true – “apply”).

[64] Berk, 146 S.Ct. at 563  (K. Jackson, J., concurring).

[65] E.g., 12 O.S. §1432 (C) (discovery automatically stayed after anti-SLAPP motion is filed).

[66] Id. §1435 (B).

[67] Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 5 (1986); Bryant v. O’Connor, 848 F.2d 1064, 1068 (10th Cir. 1988).

[68] Metabollic Research, Inc. v. Ferrell, 693 F.3d 795, 845 (9th Cir. 2012).

[69] Berk, 146 S.Ct. at 555.

[70] Id.; see also Fed. R. Civ. P. 12(d) (requiring a “reasonable opportunity to present all the [pertinent] material” if a motion to dismiss is converted to motion for summary judgment).

[71] Scott v. Harris, 550 U.S. 372, 378 (2007) (Federal “courts are required to view the facts and draw reasonable inferences in the light most favorable to the party opposing the [summary judgment] motion.”) (cleaned up).

[72] See 12 O.S. §1434(c) compare with Fed. R. Civ. P. 12 (b)(6) and (c); cf. Anderson, 2016 OK CIV APP 35, ¶4, 377 P.3d at 151 (in an anti-SLAPP motion, “none of these standards” – i.e., taking facts alleged as true – “apply”).

[73] See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

[74] See Berk, 146 S.Ct. at 555.

[75] E.g., Godin v. Schencks, 629 F.3d 79, 89-90 (1st Cir. 2010) (Maine anti-SLAPP statute); U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 973 (9th Cir. 1999) (“California has articulated the important, substantive state interests furthered by the Anti-SLAPP statute.”).

[76] See Berk, 146 S.Ct. at 557.

[77] Id.

[78] Id. at 551.

[79] Id. at 557.

[80] Id. at 556-57.

[81] Krimbill, 2018 OK CIV APP 37, ¶8, 417 P.3d at 1245; Lewis, 2020 OK CIV APP 45, ¶18, 473 P.3d at 535.

[82] See Krimbill, 2018 OK CIV APP 37, ¶8, 417 P.3d at 1245.

[83] See Berk, 146 S.Ct. at 552, 556-57.

[84] Id. at 557.

[85] Id.; see also Fed. R. Civ. P. 11.

[86] See Fed. R. Civ. P. 11.

[87] See Berk, 146 S.Ct. at 553-54.

[88] See Berk, 146 S.Ct. at 555; see also Fed. R. Civ. P. 56.

[89] See Berk, 146 S.Ct. at 551.

[90] See Berk, 146 S.Ct. at 552, 556-57.