UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

CASE NO: 9:20-cv-80847-RJS 

THE GEO GROUP, INC. and 

GEO TRANSPORT, INC. 

 

Plaintiffs, 

v. 

NETFLIX, INC., 

Defendant. 

______________________________________________/ 

DEFENDANT NETFLIX, INC.’S REPLY IN FURTHER SUPPORT OF ITS MOTION 

PURSUANT TO SECTION 768.295 OF THE FLORIDA STATUTES 

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Defendant Netflix, Inc. (“Netflix”) respectfully submits this reply in further support of its 

motion for an award of attorneys’ fees against the plaintiffs, The GEO Group, Inc. (“GEO Group”) 

and GEO Transport, Inc. (“GEO Transport”) (collectively, “GEO” or “Plaintiffs”) pursuant to 

Florida Statutes Section 768.295, Strategic Lawsuits Against Public Participation (SLAPP) 

Prohibited (the “Florida anti-SLAPP statute”). 

PRELIMINARY STATEMENT 

Florida’s anti-SLAPP statute is designed to protect expressive works, such as television 

programs, from plaintiffs who seek to suppress the First Amendment right of free speech. See Fla. 

Stat. Ann. § 768.295(1)-(2)(a). The Florida anti-SLAPP statute applies not only to “activists, 

journalists, and ordinary citizens,” (D.E. 39 at 5), as Plaintiffs claim, but also to media defendants 

responsible for publishing popular television programs. 

Netflix’s Messiah is a fictional work, created by talented writers, actors, directors, and 

editors, which explores the intersection of religious belief and government power. Messiah

involves the tense relationship between a CIA officer and a spiritual leader, who emerges out of 

nowhere, and is considered by some as the second coming, and others as a charlatan. In one of its 

ten episodes, Messiah includes a short narrative arc in which the spiritual leader is briefly held at 

an immigration detention facility. The remainder of the series has nothing to do with this facility. 

Plaintiffs’ exaggerated papers would lead a reader to believe that Messiah is an exposé 

centered on GEO, and that GEO is a constant focal point of the series. Plaintiffs decry, for example, 

that Netflix “stole” GEO Group’s intellectual property, and “destroyed” its goodwill.1 In reality, 

GEO at best appears in a collective total of 28 seconds – less than .001 percent – of the approximate 

27,000 seconds of Messiah. Even in these scattered snippets, GEO’s name is barely visible and 

used fleetingly in the background. In fact, the use of the GEO name is so imperceptible that 

 

1

 Despite Plaintiffs’ far-fetched David-and-Goliath rhetoric, the reality is that GEO Group is a 

private prison company with over two billion dollars in annual revenue, and it has chosen to expend 

its vast resources to launch a constitutionally infirm suit to punish artists behind a television show. 

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Plaintiffs were forced to resort to using cropped, enlarged screen shots of Messiah in their 

Complaint, and insert “look here” arrows. Although Messiah’s audience likely missed the brief 

flashes of GEO’s name, Plaintiffs filed this over-the-top litigation: GEO Transport, for example, 

seeks to burden the Court with six claims based on a two-second glimpse of a GEO Transport bus 

– or, three claims per second. 

Now, faced with dismissal and fee motions, Plaintiffs resort to technical arguments to 

escape the attorneys’ fee award that should befall them for their baseless filing. Plaintiffs argue 

that the Florida anti-SLAPP statute does not apply in Federal court under the Erie doctrine. This 

argument is incorrect and had been soundly, and repeatedly, rejected by the Eleventh Circuit and 

this Court, which have both awarded attorneys’ fees under the Florida anti-SLAPP statute in 

Federal Court. The anti-SLAPP statute reflects the Florida legislature’s decision to substantively

alter the law pertaining to First Amendment litigation by providing recompense to a defendant 

who is subject to a meritless claim brought to chill its First Amendment rights. 

A review of Messiah confirms that Plaintiffs brought this action knowing that it lacked 

merit and for an improper purpose, specifically, to file a glorified press release designed to 

whitewash years of negative publicity involving human rights violations at its facilities. This is a 

textbook case in which attorneys’ fees should be awarded under Florida’s anti-SLAPP statute. 

This Court should grant Netflix’s motion. 

LEGAL ARGUMENT 

I. THE FLORIDA ANTI-SLAPP STATUTE’S FEE 

SHIFTING PROVISION IS A SUBSTANTIVE ASPECT OF 

FLORIDA STATE LAW THAT APPLIES IN FEDERAL COURT 

The law of defamation in Florida is subject to the substantive statutory provisions of the 

anti-SLAPP statute, which expressly memorializes the legislature’s intent to prevent the costs of 

litigation from becoming weaponized to suppress free speech. “It is the public policy of this state 

that a person or governmental entity not engage in SLAPP suits because such actions are 

inconsistent with the right of persons to exercise such constitutional rights of free speech in 

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connection with public issues. Therefore, the Legislature finds and declares that prohibiting such 

lawsuits as herein described will preserve this fundamental state policy.” Fla. Stat. Ann. § 

768.295(1). 

Netflix’s Motion to Dismiss is made pursuant to Federal Rule of Civil Procedure 12(b)(6), 

but its request for attorneys’ fees and costs is premised on Plaintiffs’ defamation claims and the 

substantive law of Florida. Just as this Court is bound to evaluate the sufficiency of Plaintiffs’ 

defamation claims under Florida law, e.g., Jews For Jesus, Inc. v. Rapp, 997 So.2d 1098, 1105 

(Fla. 2008), this Court is equally bound by the Florida statute that mandates an award of attorneys’ 

fees for meritless suits brought to impinge upon First Amendment rights. To hold otherwise would 

incentivize forum shopping for plaintiffs seeking to chill speech and transform the federal courts 

of Florida into a “safe haven” for those seeking to suppress free speech via expensive litigation. 

A. The Florida anti-SLAPP Statute’s Fee Shifting Provision Does Not 

Conflict With Any Aspect of the Federal Rules of Civil Procedure 

Plaintiffs agree that the relevant analytical framework under the Erie doctrine is wellestablished: “A federal court exercising diversity jurisdiction will not apply a state statute if a 

Federal Rule of Civil Procedure ‘answers the question in dispute.’” Carbone v. Cable News 

Network, Inc., 910 F.3d 1345, 1349 (11th Cir. 2018) (quoting Shady Grove Orthopedic Assocs., 

P.A. v. Allstate Ins. Co., 559 U.S. 393, 398 (2010)). “If no Federal Rule answers the question in 

dispute,” the court undertakes “an unguided Erie inquiry to decide whether to apply the state 

statute or federal common law.” Carbone, 910 F.3d at 1349 (citing Hanna v. Plumer, 380 U.S. 

460, 471 (1965)). The court is to be mindful of “‘whether failure to apply the state law would lead 

to different outcomes in state and federal court and result in inequitable administration of the laws 

or forum shopping.”” Carbone, 910 F.3d at 1349 (quoting Royalty Network, Inc. v. Harris, 756 

F.3d 1351 (11th Cir. 2014)). 

Despite Plaintiffs’ reliance on Carbone, that opinion did not address the substantive aspects 

of the anti-SLAPP statute such as fees. Instead, in Carbone, the Eleventh Circuit was asked to 

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evaluate whether “the dismissal provision of the Georgia anti-SLAPP statute” applied in federal 

court. 910 F.3d at 1350 (analyzing Ga. Code Ann. § 9-11-11.1(b)(1)) (emphases added). The 

Carbone court held that the anti-SLAPP statute’s pleading standard was procedural, and directly 

conflicted with the Federal Rule of Civil Procedure 8, and thus, under well-established Erie 

precedent, did not apply. Id. And there is no question that certain other aspects of Florida’s antiSLAPP statute, such as those provisions that pertain to the sequencing and timing of motion 

practice, are also procedural in nature and thus inapplicable. See Fla. Stat. Ann. § 768.295(4).2 

Plaintiffs ignore, however, that there are numerous provisions within the anti-SLAPP 

statute that are substantive, and which thus do not implicate the Erie doctrine. The requirement 

that any governmental entity found to have violated the anti-SLAPP statute is obligated to make a 

report to the Florida Attorney General is one example. Fla. Stat. Ann. § 768.295(4). The award 

of reasonable attorney fees and costs is likewise substantive, in that it alters the common law 

American rule on fees and replaces it with a statutory fee shifting provision.3 The Eleventh Circuit 

has consistently held that state law claims for attorneys’ fees are “unequivocally substantive 

for Erie purposes.” Showan v. Pressdee, 922 F.3d 1211, 1225 (11th Cir. 2019); Trans Coastal 

Roofing Co. v. David Boland, Inc., 309 F.3d 758, 760 (11th Cir. 2002) (“Since Boland’s claim for 

 

2

 As in Carbone, other Circuits that have held that certain procedural aspects of state anti-SLAPP 

statutes cannot be imported into federal court, but then refrained from opining as to the 

applicability of attorneys’ fees provisions. See Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 

1335 n.3 (D.C. Cir. 2015) (holding procedural aspects of D.C. anti-SLAPP statute conflicted with 

Federal Rules, but suggesting attorneys’ fees provisions may be subject to different analysis); 

Klocke v. Watson, 936 F.3d 240, 245 (5th Cir. 2019), as revised (Aug. 29, 2019) (holding only that 

procedural and evidentiary burden-shifting provisions of Texas anti-SLAPP statute conflicted with 

Federal Rules). 

3

 It is this distinction between procedural and substantive aspects of anti-SLAPP law that accounts 

for Netflix’s withdrawal of its anti-SLAPP motion in Fairstein v. Netflix, Inc. In that litigation, 

Netflix sought to preserve its right to avail itself of certain procedural aspects of California’s antiSLAPP statute if the action were to be transferred to the Southern District of New York. Special 

Motion to Strike Pursuant to California Anti-SLAPP Act, Cal. C.C.P. § 425.16, Fairstein v. Netflix, 

Inc., No. 20-cv-180 (M.D. Fla. May 18, 2020), ECF No. 30. Netflix subsequently withdrew the 

motion after the Second Circuit issued its opinion in La Liberte v. Reid, 966 F.3d 79 (2d Cir. 2020), 

which held for the first time that the California anti-SLAPP law did not apply in the Second Circuit. 

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attorneys’ fees sounds in state law and reaches us by way of federal diversity jurisdiction, we apply 

the substantive law of Florida, the forum state.”) (citation omitted). 

Indeed, the fee shifting provision in the Florida anti-SLAPP statute has been applied 

without reservation by Florida district courts and the Eleventh Circuit in other anti-SLAPP cases, 

including as recently as September 29, 2020 by the Honorable Judge Ungaro. See Ener v. 

Duckenfield, No. 1:20-CV-22886-UU, 2020 U.S. Dist. LEXIS 181407, at *12-14 (S.D. Fla. Sept. 

29, 2020) (dismissing plaintiff’s claims pursuant to Rule 12(b)(6) and holding attorney’s fees 

should be awarded under Florida anti-SLAPP statute); Anderson v. Best Buy Stores L.P, No. 5:20-

CV-41-OC-30PRL, 2020 WL 5122781, at *4 (M.D. Fla. July 28, 2020), report and 

recommendation adopted sub nom. Anderson v. Coupons in News, No. 5:20-CV-41-OC-30PRL, 

2020 WL 5106676 (M.D. Fla. Aug. 31, 2020) (same); Parekh v. CBS Corp., No. 19-11794, 2020 

WL 3400679, at *6 (11th Cir. June 19, 2020); Tobinick v. Novella, 884 F.3d 1110, 1119 (11th Cir. 

2018).4 

B. Plaintiffs Have Not Cited (And Cannot Cite) Any Eleventh 

Circuit Case Law Holding That the Florida anti-SLAPP 

Statute’s Attorneys’ Fees Provision Is Inapplicable in Federal Court 

Despite the multiple cases in the Eleventh Circuit awarding fees under the anti-SLAPP 

statute’s fee-shifting provision, Plaintiffs argue that the Court should somehow disregard those 

decisions, while failing to cite a single Eleventh Circuit opinion in which the Court, sua sponte or 

otherwise, that has so much as even suggested that anti-SLAPP statute’s attorneys’ fees provision 

is “procedural” and thus inapplicable in federal court. The Eleventh Circuit’s awards of fees under 

this statute are in line with other Circuit Courts that have had occasion to examine anti-SLAPP 

statutes similar to Florida’s, which have held that other states’ anti-SLAPP statutes can be read in 

harmony with the Federal Rules of Civil Procedure. See Godin v. Schencks, 629 F.3d 79, 91 (1st 

 

4

See also Adelson v. Harris, 774 F.3d 803, 809 (2d Cir. 2014) (analyzing the Nevada anti-SLAPP 

statute and delineating between the substantive aspects of the statute (a particular form of 

immunity from civil liability and mandatory fee shifting) and the procedural aspects of the law (a 

bar on discovery until resolution of the anti-SLAPP motion)). 

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Cir. 2010) (holding Maine anti-SLAPP law applied in federal court); U.S. ex rel. Newsham v. 

Lockheed Missiles & Space Co., 190 F.3d 963, 973 (9th Cir. 1999) (holding California anti-SLAPP 

law applied in federal court); Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 182–83 (5th 

Cir. 2009) (applying Louisiana anti-SLAPP statute). 

This Court can and should therefore apply the substantive elements of Florida’s antiSLAPP statute, including the attorney-fee shifting provisions. Fla. Stat. Ann. § 768.295(4). 

Upholding this distinction would be consistent with other courts in this Circuit, and to hold 

otherwise would result in different consequences for meritless claims brought in federal court than 

in state court, inviting forum-shopping. See Godin v. Schencks, 629 F.3d 79, 92 (1st Cir. 2010) 

(“[W]ere [the Maine anti-SLAPP statute] not to apply in federal court, the incentives for forum 

shopping would be strong: electing to bring state-law claims in federal as opposed to state court 

would allow a plaintiff to . . . circumvent any liability for a defendant’s attorney’s fees or costs.”). 

C. Rule 11 Does Not Override the Florida anti-SLAPP Statute. 

Nor is it the case, as Plaintiffs argue, that the Florida anti-SLAPP statute’s attorneys’ fees 

provision is somehow the functional equivalent of Federal Rule of Civil Procedure 11. Rule 11 is 

a disciplinary statute; it “is not designed to make the movant whole for any and all injuries 

sustained as a result of a frivolous filing, and any monetary sanctions one party happens to receive 

from the other are incidental to the rule’s deterrent purpose.” Showan, 922 F.3d at 1226; Business 

Guides, Inc. v. Chromatic Commc'ns Enters., Inc., 498 U.S. 533, 553 (1991) (“The main objective 

of the Rule is not to reward parties who are victimized by litigation; it is to deter baseless filings 

and curb abuses.”) (citation omitted). 

In Showan, for example, the defendants asserted baseless defenses, only to drop them at 

the eve of trial. The plaintiff sought attorneys’ fees under Ga. Code Ann. § 9-11-68, the Georgia 

statute that grants attorneys’ fees to a prevailing party in a tort action when it is found that the 

opposing party made a frivolous defense. See Showan, 922 F.3d at 1222-23. The defendants 

argued that Rule 11 “addressed the same subject” as the Georgia statute and that, therefore, that 

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the state statute did not apply in Federal Court. The Eleventh Circuit disagreed, holding that Rule 

11 was concerned with forward-looking deterrence, whereas the Georgia Code § 9-11-68 

“compensates prevailing parties for litigation costs and other injuries endured because of an 

opposing party's decision to present meritless,” claims or defenses. Showan, 922 F.3d at 1225. 

Similarly, while the trigger for a fee award under the Florida anti-SLAPP statute is the 

filing of a meritless claim designed to suppress First Amendment speech, the attorneys’ fees 

provision is designed to primarily compensate the victim of the SLAPP, not to punish the plaintiff. 

There is thus no conflict between Rule 11 and Florida Statute § 768.295(4), and Plaintiffs have 

failed to cite a single case that says so. There is no reason why the fee-shifting provisions should 

not apply here. 

II. PLAINTIFFS ARE NOT ENTITLED TO ANY FEE 

SHIFTING UNDER THE FLORIDA ANTI-SLAPP STATUTE 

After arguing that the Florida anti-SLAPP statute does not apply, Plaintiffs then 

incongruously argue that it is they who should be awarded their attorneys’ fees. This argument 

turns the Florida anti-SLAPP statute on its head, and finds no support in either the text of the 

Florida anti-SLAPP statute itself, or any precedent interpreting it. 

A. The Purpose of the Statute Is to Protect First 

Amendment Speech, Not Reward Defamation Plaintiffs 

The Florida anti-SLAPP statute’s grant of fees is intended to award fees solely to parties 

whose First Amendment rights have been suppressed. This intent is clear by considering the term 

“prevailing party,” within context with the rest of the clause, which provides for fee awards “in 

connection with a claim that an action was filed in violation of this section.” Fla. Stat. Ann. § 

768.295(4) (emphasis added). An action is a “civil or criminal judicial proceeding.” See ACTION, 

Black's Law Dictionary (11th ed. 2019). An “action” is not a motion. 

The proper interpretation of the attorneys’ fees provision is clear when read in harmony 

with the remainder of the statutory text. A fee award is appropriate when a party brings an “action” 

that is “without merit” “primarily because” the other party has “exercised the constitutional right 

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of free speech.” A defendant in a SLAPP suit, such as Netflix, is not responsible for filing an 

“action,” and therefore is not subject to payment of attorneys’ fees. The sole reason why the Florida 

anti-SLAPP statute mentions “prevailing party” as opposed to simply using the terms “plaintiff” 

and “defendant” is to account for the possibility that a defendant could file a SLAPP action as a 

retaliatory counterclaim or cross-claim. Any contrary interpretation loses sight of the statutory 

forest for the trees: the Florida anti-SLAPP statute is designed to protect creators of First 

Amendment-protected works, like television programs, from meritless suits designed to suppress 

that protected free speech. See, e.g., Anderson, 2020 WL 5122781, at *4 (awarding fees to 

defendant); Rigmaiden v. NBCUniversal Media LLC, No. 2018-015032-CA-01, 2019 WL 

10252763, at *4 (Fla. Cir. Ct. Dec. 31, 2019) (same). It is not to saddle the creator of a First 

Amendment-protected work, already burdened with an expensive litigation, with the threat of fees. 

Plaintiffs cite to no authority, and Netflix is unable to locate any precedent that would 

support the absurd proposition that a defamation plaintiff should be permitted to weaponize the 

Florida anti-SLAPP statute and then use it as an additional cudgel against a defendant who 

exercises its First Amendment rights. Indeed, their arguments underscore the need to protect 

creators of expressive works from those who would suppress their speech. 

B. Plaintiffs Lawsuit Was Filed “Primarily” Because Netflix Exercised 

Its Constitutional Right of Free Speech in Connection with a Public Issue 

Plaintiffs’ novel claim for fees is further belied by the express language of the statute, 

which provides for fees when claims are filed “primarily because” a defendant exercises its 

constitutional right of free speech. Fla. Stat. Ann. § 768.295(3). The drafters of the Florida antiSLAPP statute contemplated that creative plaintiffs would find ways to try and plead around the 

statute, and thus the Florida Legislature deliberately framed the anti-SLAPP in terms of the First 

Amendment rights to be protected, not the labels of the particular causes of action that the plaintiff 

brought. See The Florida Senate Bill Analysis and Fiscal Impact Statement re Strategic Lawsuits 

against Public Participation CS/SB 1312, Florida One Hundred Seventeenth Regular Session 

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(March 11, 2015) (Judiciary Committee and Senator Simmons) (“Because of the variety of 

nominal bases for a SLAPP suit, laws to prevent them, known as anti-SLAPP laws, are phrased in 

terms of rights to be protected.”). Plaintiffs freely admit that all of their claims target the same 

underlying conduct: the alleged use of their logos in an expressive work protected by the First 

Amendment. Consequently, Plaintiffs attempt to shift fees fails. 

Netflix’s entitlement to fees does not evaporate depending on how and in what sequence 

Plaintiffs’ claims are disposed. As Netflix’s Rule 12(b)(6) motion establishes, every claim in the 

Complaint is fatally deficient. Even if the Court dismisses fewer than all of Plaintiffs’ claims, 

attorneys’ fees are still warranted under the Florida anti-SLAPP statute, because Plaintiffs’ action 

was brought with the primary intent to suppress Netflix’s speech. If, for example, GEO 

Transport’s claims (all six of which are based on a single, two-second image of a bus which cannot 

possibly rise to the level of defamation as a matter of law) are dismissed in their entirety, then 

Netflix will have prevailed over GEO Transport, and should be compensated for having to defend 

against GEO Transport’s meritless claims. 

Similarly, even if one or more of GEO Group’s claims were to survive Netflix’s motion, 

Netflix’s right to eventually recover attorneys’ fees should be preserved until the remaining claim(s) 

are eventually unsuccessful. All that is required for the Court to award fees under the Florida antiSLAPP statute is a finding that GEO Group’s claims lack merit and were filed “primarily because” 

Netflix exercised its constitutional right of free speech. Fla. Stat. Ann. § 768.295(3). The Florida 

anti-SLAPP statute does not limit the award of fees solely to when the SLAPP suit can be fully 

eliminated upon a motion to dismiss standard. Fla. Stat. Ann. § 768.295(4). 

The intent of the Florida legislature is clear: plaintiffs such as GEO Group and GEO 

Transport should be obligated to compensate a defendant like Netflix who is forced to pay legal 

fees in order to exercise and defend its constitutional right to free speech. This Court should apply 

that substantive aspect of Florida law. 

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CONCLUSION 

For the foregoing reasons and those set forth in Netflix’s contemporaneous Motion to 

Dismiss, Netflix respectfully requests that this Court award reasonable attorney fees and costs to 

Netflix pursuant to Florida Statues Section 768.295(4), and provide such other and further relief 

as the Court deems just and proper. 

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Dated: October 7, 2020 

PRYOR CASHMAN LLP 

Attorneys for Netflix, Inc. 

Ilene S. Farkas (admitted pro hac vice) 

James G. Sammataro 

Florida Bar No. 0208060 

Michael B. Adelman (admitted pro hac vice) 

201 South Biscayne Boulevard, Suite 2700 

Miami, Florida 33131 

Telephone: (786) 582-3011 

Facsimile: (786) 582-3004 

s/ James G. Sammataro

 Florida Bar No. 520292

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on October 7, 2020, I electronically filed the foregoing 

document with the Clerk of the Court using the CM/ECF system, which will send Notices of 

Electronic Filing to all counsel of record. 

s/ James G. Sammataro

James G. Sammataro 

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