Anti-SLAPP litigation, an overview and recent developments, was the topic of a recent lunch seminar Jay Spillane, along with Akin Gump partner Michael Small, delivered to the Los Angeles LLP ProVisors affinity group in early August. Anti-SLAPP suits are authorized by California Code of Civil Procedure Section 425.16 as a defense to a strategic lawsuit against public participation (SLAPP). The anti-SLAPP statute was enacted to counter lawsuits that “chill” the “valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.”
SLAPP and anti-SLAPP motions are maneuvers parties employ in many bet-the-company lawsuits, and the procedures differ from typical civil cases. For example, a defendant must respond within 60 days after service and the court must provide a hearing within 30 days (or as soon as docket conditions allow). Courts may consider pleadings and declarations, but discovery is stayed unless a party shows good cause. Orders are immediately appealable.
Plaintiffs should also aware of anti-SLAPP fee awards: a prevailing defendant is entitled to attorney fees while a plaintiff must show frivolity to obtain a fee award.
The defendant must prove the cause of action arises under a “speech or petition activity” in connection with a “public issue.” A host of case law in California continues to define those terms. A plaintiff need only establish the probability it will prevail on its claims.
Many plaintiffs in high-stakes litigation may not be aware of California’s anti-SLAPP law, but it is a discussion they should have with their lawyers before retaining counsel. Employing a lawyer well-versed in anti-SLAPP motions could avoid the headaches and additional, sometimes exorbitant fees that may accumulate.