Late last month, the U.S. Southern District of New York issued a pair of decisions finding that the fee-shifting provision of New York’s anti-SLAPP law, N.Y. C.R.L. § 70-a, applies in federal court. In both Grifols, S.A. v. Yu, 2026 WL 836657 (S.D.N.Y. Mar. 26, 2026), and Lively v. Wayfarer Studios LLC, 2026 WL 852733 (S.D.N.Y. Mar. 27, 2026), Judge Lewis Liman held that the fee-shifting provision created a substantive right, meaning it could be applied in federal court under the Erie doctrine.
In Grifols, S.A., a short seller, Gotham City Research, published a research report on its target, the biopharmaceutical company Grifols, stating that Grifols was overvalued. Grifols, S.A., 2026 WL 836657, at *1. Grifols brought a defamation claim, and the defendants responded with an anti-SLAPP counterclaim seeking attorney’s fees, costs, expenses, compensatory damages, and punitive damages. Id. at *1–2. The Court applied § 70-a and denied Grifols’ motion to dismiss the counterclaim. See id. at *4–5. Section 70-a is the fee-shifting provision of New York’s anti-SLAPP statute.
The Court held that § 70-a(1) “sets forth the substantive right,” which a New York federal court sitting in diversity should apply under the Erie doctrine. That right allows a SLAPP defendant to recover damages, costs, and attorney’s fees if the SLAPP action “was commenced or continued without a substantial basis in fact and law and could not be supported by a substantial argument for the extension, modification or reversal of existing law.” Grifols, S.A., 2026 WL 836657, at *5. The Court reasoned that the right to bring an action for fee-shifting is substantive and thus applicable in federal court because it “impacts the ‘rights and obligations of individuals within a given jurisdiction.’” See id. at *10 (citing Heilbut v. Cassava Sciences, Inc., F. Supp. 3d 551, 567–68 (S.D.N.Y. 2025) (citations omitted)).
The decision is especially notable because it directly addressed New York’s inconsistent precedent—including Judge Liman’s own opinion in Brady v. NYP Holdings, Inc., 2022 WL 992631 (S.D.N.Y. Mar. 31, 2022). There, the Court held that § 70-a’s fee-shifting provision was procedurally a sanctions regime that conflicted with Fed. R. Civ. P. 11 and didn’t apply in federal court. Brady, 2022 WL 99263, at *11. However, Judge Liman said that two recent developments had changed his mind on fee-shifting: the Supreme Court’s opinion in Berk v. Choy analyzing whether Delaware’s affidavit of merit rule for medical malpractice claims was displaced by Fed. R. Civ. P. 8 and the growing “weight of authority” in New York toward applying fee-shifting in federal court. See Grifols, S.A., 2026 WL 836657, at *4. That authority, including Bobulinski v. Tarlov, 758 F. Supp. 3d 166, 184-88 (S.D.N.Y. 2024), Heilbut v. Cassava Sciences, Inc., F. Supp. 3d 551, 567–68 (S.D.N.Y. 2025), Button v. N.Y. Times Co., 2025 WL 2643674, at *20 (S.D.N.Y. Sep. 15, 2025), and Murchinson Ltd. v. Nano Dimension Ltd., 2025 WL 1397615, at *16 (S.D.N.Y. May 14, 2025), showed that New York’s anti-SLAPP law has both substantive and procedural features. Grifols, S.A., 2026 WL 836657, at *4. Judge Liman admitted he “did not appreciate and thus did not address” these qualities of New York’s anti-SLAPP law in deciding Brady. See id.
One day after Grifols,Judge Liman bolstered his change of heart in Lively, finding that New York “now joins that emerging consensus” holding that the “substantive provisions of the New York anti-SLAPP statute do not violate the Rules Enabling Act or conflict with a Federal Rule of Civil Procedure.” 2026 WL 852733, at *4. However, he warned that the “procedural rules” of New York’s anti-SLAPP statutes, like those found in C.P.L.R. 3211(g)(1)–(2), will likely not apply in federal court. See id. at *5.
Another federal district court recently mirrored Judge Liman’s conclusion. In Richey v. Showtime Networks Inc., Judge Bibas (a Third Circuit judge sitting by designation in the U.S. District Court of Delaware) held that § 70-a applies in federal court. 2026 WL 867264, at *4–5. Like Judge Liman, Judge Bibas reasoned that fee-shifting doesn’t conflict with Fed. R. Civ. P. 12 because state anti-SLAPP law creates a substantive right to costs and attorney’s fees if the plaintiff’s claim lacks a substantial basis in fact and law. Id. at *5.
These decisions don’t resolve every open question about anti-SLAPP litigation in federal courts. It’s still unclear which of the other anti-SLAPP provisions—such as New York’s C.R.L. § 76-a (defining terms and setting fault standard), C.P.L.R. § 3211(g) (setting rules for motions to dismiss in SLAPP lawsuits), and C.P.L.R. § 3212(h) (setting rules for motions for summary judgment in SLAPP lawsuits)—might apply. Plus, as noted by Judge Bibas, some readings of § 70-a may conflict with the post-judgment procedures of Fed. R. Civ. P. 54(d).
Regardless, these decisions demonstrate positive momentum for anti-SLAPP fee-shifting in federal court.
