As we wrote about recently and elaborate on here, a U.S. Third Circuit judge has agreed that fee-shifting under New York’s anti-SLAPP law applies in federal court. The decision in Richey v. Showtime Networks Inc. highlights the growing trend toward applying anti-SLAPP fee-shifting in federal courts. 2026 WL 867264 (D. Del. Mar. 30, 2026). But questions remain about the best procedural method for successful anti-SLAPP defendants to seek fees and costs.
In Richey, Third Circuit Judge Bibas denied without prejudice Showtime’s request for fees and costs under New York’s anti-SLAPP statute, but did so only after holding that the fee-shifting provision does apply in federal court. Id. at *4. Judge Bibas, sitting by designation in the U.S. District of Delaware, distinguished the procedural features of New York’s anti-SLAPP statute, like the special rules for anti-SLAPP motions to dismiss in C.P.L.R. 3211(g), from its substantive features, most notably the right to bring an anti-SLAPP action for fee-shifting if the lawsuit was “commenced or continued without a substantial basis in fact and law.” Id. at *5. As a result, Judge Bibas held that the substantive fee-shifting provision did not conflict with Fed. R. Civ. P. 12 and applies in federal court. Id. at 4–5.
But Judge Bibas indicated that the fee-shifting provision may “implicate” Fed. R. Civ. P. 54(d), the federal rule governing costs and attorney’s fees, in two different ways: first, whether Showtime can recover costs under New York law, and second, when and how it must request costs and fees. Id. at *5. Judge Bibas dealt with the first question quickly because the Third Circuit has already held that costs guaranteed under Rule 54(d) prevail over a state provision such as anti-SLAPP. Id. (citing Abrams v. Lightolier, Inc., 50 F.3d 1204, 1223 (3d Cir. 1995)). Therefore, according to Judge Bibas, Rule 54(d) applies to the question of costs and caps how much Showtime may recover. Id. at *6.
But the second question is “thorny.” Id. The fee-shifting provision of New York’s anti-SLAPP law allows a defendant to “maintain an action, claim, cross claim or counterclaim to recover damages” from the plaintiff of a SLAPP lawsuit. § 70-a(1). Federal courts haven’t agreed on what it means to “maintain” an action. Judge Bibas reasoned that the language suggests that a separate proceeding or a parallel claim in the same SLAPP litigation would constitute “maintain[ing]” the plaintiff’s action, but he questioned whether simply requesting costs and fees inside a motion to dismiss would be enough. Richey, 2026 WL 867264, at *6.
Rule 54(d) states that “[a] claim for attorney’s fees . . . must be made by motion unless the substantive law requires those fees to be proved at trial as an element of damages.” Rule 54(d)(2)(A). The rule then adds requirements for the timing and content of such a motion that apply “[u]nless a statute or a court order provides otherwise.” Rule 54(d)(2)(B). According to Judge Bibas, if fee-shifting is a “statute” that “provides otherwise,” then under the language of Rule 54(d)(2), § 70-a applies. Richey, 2026 WL 867264, at *6. If § 70-a applies, then Showtime’s request inside its motion to dismiss would constitute “maintain[ing]” an action and Judge Bibas may rule on fees in his dismissal decision. Id. But if not, the Court would apply Rule 54 and its heightened procedural requirements for the timing and content of a motion for fees and would have to wait for a post-judgment motion. Id.
Judge Bibas left this as an open question because the parties didn’t brief Rule 54. But SLAPP defendants considering the best way to request fees in federal court should be aware that Rule 54 might be the appropriate mechanism.
The Richey decision joins the growing chorus of federal courts that have found the fee-shifting provisions of New York’s anti-SLAPP statute applicable in federal court. See id.; see also Lively v. Wayfarer Studios LLC, 2026 WL 852733, at *4 (S.D.N.Y. Mar. 27, 2026) (“There is an emerging trend of cases favoring the application of the substantive standards of the New York anti-SLAPP statute in federal court. The Court now joins that emerging consensus.” (citation omitted)); Grifols, S.A. v. Yu, 2026 WL 836657, at *6 (S.D.N.Y. Mar. 26, 2026) (“New York’s anti-SLAPP statute creates a substantive right that does not conflict with the Federal Rules of Civil Procedure and is thus applicable in federal court.”); Heilbut v. Cassava Sciences, Inc., F. Supp. 3d 551, 567–68 (S.D.N.Y. 2025) (“Accordingly, ‘a federal court sitting in diversity must apply’ section 70-a ‘because it is a substantive, rather than a procedural, provision.’” (citation omitted)); Bobulinski v. Tarlov, 758 F. Supp. 3d 166, 184–88 (S.D.N.Y. 2024) (“Thus, whether or not a court were to determine that Section 70-a(1) has some procedure bound up with the substantive right, its provision for attorney’s fees applies in federal court.”). We’ll continue to monitor these developments closely.
