APRIL 2026 | 45 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. 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 antiSLAPP 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. 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. 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.
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