What Does it Take to Stop SLAPPers?

In recent decades, there have been many allegations that a large number of lawsuits have been brought to intimidate speakers on various public issues, who may not have the resources to defend against a “SLAPP” suit. (The name is an acronym for “strategic lawsuit against public participation.”) Most, if not all, states have responded to this trend by enacting anti-SLAPP laws, many of which are designed to weed out bad faith and unprovable suits by allowing early dismissal. A recent case from Oregon shows that the reach of the anti-SLAPP laws are often limited, as legitimate cases still deserve to be heard.

The Oregon anti-SLAPP law allows a case to be dismissed at the outset in a narrow range of circumstances. First, the defendant has to show that the suit arose out of a the exercise of free speech on a matter of public concern, such as testimony to the legislature or a court, or a public statement on the matter. If the defendant makes this showing, the plaintiff then has to present evidence that the suit might have merit, both under the law and according to the evidence. If the plaintiff cannot convince the court of the potential validity of the suit, the suit can be dismissed. The question that was left unanswered until the newly decided case was exactly how much evidence the plaintiff needed to show to get over the hurdle.

The plaintiff and defendant worked together at a federal office. The defendant accused the plaintiff of sexual harassment, which led to two investigations at the workplace. The defendant also requested the court issue a stalking protective order, and then accused the plaintiff of violating the order pending a hearing. (The order was dismissed after the hearing.) The plaintiff then sued the defendant for defamation and wrongful institution of civil proceedings (arguing that the defendant had had no evidence to request a stalking protective order and was maliciously trying to harass the plaintiff by requesting it).

The defendant then moved to dismiss the suit under the anti-SLAPP law. In response, the plaintiff submitted evidence that the trial court ruled was enough that a juror might rule in her favor, but not enough to show that the plaintiff was likely to prevail. Applying a “likely to prevail” standard, the trial court dismissed the case, and the plaintiff appealed.

The Court of Appeals ruled that the trial court had misread the law. It clarified that the proper standard was that the plaintiff needs to show enough evidence that a juror might be able to rule in the plaintiff’s favor. In Oregon, this is a low standard but a familiar one; it is the same standard used for most other motions to end a case for insufficient evidence.

As a practical matter, the Oregon anti-SLAPP law moves the time for a motion to end a case for insufficient evidence from after discovery to the beginning of the case. This may be of value if the defendant believes that the plaintiff brought the suit in bad faith, but it is not useful if there is a real issue or if the evidence might meet the minimum to make the case.

The Washington anti-SLAPP law has a bit more bite to it. The test for when the law might apply is basically the same, but the plaintiff has to show that it is highly probable that it might win the suit. In addition, it a suit is dismissed under the anti-SLAPP law, the defendant can claim a penalty award of up to $10,000 and its attorney fees. Oregon doesn’t have this special award.

If you think you are being sued in response to a public statement, and you think the suit is questionable, you should consult a lawyer quickly. In both Oregon and Washington, there is a 60 day deadline to invoke the anti-SLAPP law. You’ll want to get an analysis of all of the available evidence as soon as possible to decide not only if you can defend generally, but also if you have a chance to stop the case early. This will be important in deciding whether to fight the suit or settle it.

(Also, bring the lawyer your homeowner’s or renter’s insurance policy, or any other liability insurance policies you may have. The case might be covered.)


3 Responses to What Does it Take to Stop SLAPPers?

  1. After this post was published, I was informed by another lawyer I know that he has another anti-SLAPP case pending in the Oregon Court of Appeals. Watch this space for updates.

  2. A new case on the Oregon SLAPP statute, decided last week, applies the general principles discussed in this article, but does not break significant new legal ground.

  3. And I have just been informed that the Oregon Court of Appeals has decided another case involving a SLAPP, but this time without writing an opinion. According to the lawyer who told me about this, the judges seemed mostly interested in technical questions regarding how the court should analyze the evidence.

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