United States: 10 Tips On How To Use Anti-SLAPP Protection In Litigation

In my practice, I have found that California's Strategic Lawsuit Against Public Participation Statute, Section 425.16 of the Code of Civil Procedure (known as the "anti-SLAPP statute"), can be an effective tool for defendants faced with lawsuits of dubious merit, because it allows the court, on motion, to scrutinize the merits of a case at a very early stage, and eliminate unmeritorious actions. Here are some practical tips I have gleaned from experience (successful and not) on how to make (or oppose) such a motion.

1. Making the Motion: As with any motion, 2 questions are key: 1) Are there good reasons to make this motion; and 2) What can I reasonably hope to accomplish by making the motion?

Defendant should not make the motion if the pleadings in the complaint are sufficient and it appears the plaintiff is likely to have sufficient evidence to support them, regardless of whether the conduct falls within anti-SLAPP protection. Just as they do not like frivolous lawsuits, judges do not like to be troubled with idle motions. However, there may be reasons to make the motion if the merits appear questionable, particularly where the burden on the merits rests with the opposing plaintiff. Here are some examples:

2. Making the Motion: Make the motion only if there is a decent argument that the challenged activity falls within the statute. Most anti-SLAPP motions are won and lost on this often-complicated issue, so any such motion should be armed with factual arguments and relevant case law to convince the judge that the case merits the statute's protection. The conduct attacked by the pleadings must be protected speech or petitioning activity, e.g., conduct in official proceedings, in connection with issues being considered by a governmental body, or regarding issues of public interest or in a public forum. This application is sometimes obvious, and sometimes not. While judges are required to construe the statute liberally, they will carefully scrutinize an anti-SLAPP motion to ensure that this burden is met, before examining the merits of the case. Remember, the conduct must be speech or petitioning activity; and concern a public issue or occur within some official or public context. Pure commercial activity will not merit protection.

3. Take the Motion Seriously: The motion should not be treated lightly. It may be the defendant's only opportunity to end the case short of full discovery and a summary judgment hearing, or trial. It also may be the only opportunity for the defendant to recover attorney's fees as a prevailing party, as the statute provides for such recovery if the motion is successful. There are numerous potential benefits to a defendant making the motion if the basis exists to do so. Consider them. And if you are the plaintiff, you cannot lose this motion, because your case, or at least part of it, will be over (or at best, on appeal). Thus, you should treat the motion very seriously in opposing it, and must assume a worst case scenario and that the judge could reach the merits of the case. In short, you must prove that there is a case, whether or not you think the statute applies.

4. The Pleadings Count: If the motion is appropriate, it should be brought as soon as possible (usually within 60 days of the lawsuit filing), and where feasible, combined with a demurrer and/or standard motion to strike if the pleadings are deficient. The court is not confined to the evidence in its consideration of the merits on an anti-SLAPP motion, as the plaintiff is also obliged to convince the court that the complaint is legally sufficient. A demurrer or motion to strike is a proper companion tool to highlight any such legal insufficiency.

5. Organize the Motion to Fit the Statute: The motion should be tailored to fit the requirements of the statute. For example, the moving papers might sequentially and separately address: 1) why the conduct the plaintiff attacks constitutes speech or petitioning activity (i.e., why that conduct would be protected under the Constitution); 2) how the conduct took place within a public or forum, governmental or quasi-governmental proceeding, or concerns a public issue or matter of arguable public interest (typically, it must involve something more than a mere dispute over money); and 3) why the plaintiff will probably not prevail. Be organized; you are trying to win your case on a motion, which is not easy.

6. Prove Your Motion to Dispose of the Case: Even though the statute and case law require that the statute be liberally construed and applied, judges still exhibit a preference for deciding cases on the merits, and will not dismiss a case unless convinced that the case a) is one where the statute should operate; and b) is one without merit, either on the evidence or as a matter of law. Do not assume your judge will view the motion as an opportunity to rid his docket of another case at an early stage. Rather, treat the motion almost like one for summary judgment in terms of lining up your arguments and proof.

7. The Motion Addresses Claims: Remember that the motion can address particular conduct and causes of action, as opposed to the complaint as a whole. Therefore, the judge can rule that certain claims remain in the case, while dismissing other claims under the statute.

8. Make the Motion Persuasive: Because the motion is typically made before discovery has commenced, let alone developed, it is critical to support the motion with proper declarations, exhibits, requests for judicial notice (where evidence outside of the pleadings may be considered), and the like, and be sure to cite those materials in your brief so the judge can easily find support for your arguments. Make it easy for the judge to understand why the statute supports your position.

9. Do You Really Want to Appeal? Consider how an appeal from denial of the motion may impact your case if the defendant, or from the grant of the motion if the plaintiff. If an appeal is filed from the trial court ruling (as is allowed), it will immediately stay the case in the trial court until the appellate court decision becomes final, and this process could take a year or so, during which no discovery or motion practice can be conducted in the trial court. There could be advantages to foregoing or pursuing an appeal, and these should be carefully weighed. Appeal is not automatically the best course. For example, a plaintiff losing the motion as to some claims may choose not to appeal in order to avoid delay of trial on the remainder of the case, which would result from appeal. A defendant might have the very same reasons.

10. This is My Mantra: Always take the time to specifically tell the judge why your case is one that fits within the legislative intent in enacting the statute, or if you are the plaintiff, why it does not fit.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.