We all know the stories about big companies and well-heeled individuals filing nuisance lawsuits against whistleblowers, competitors, or other troublemakers just to shut these less-resourceful parties up. There’s a name for that sort of lawsuit, and — at least in some states — there are ways for defendants to fight back. However, even the best available remedies are far from perfect.

SLAPP Happy

This sort of frivolous lawsuit is referred to as a SLAPP — a Strategic Lawsuit Against Public Participation — which means exactly what the words imply: The plaintiff is filing the complaint with the strategic goal of preventing the defendant from expressing themselves freely.

“SLAPP suits differ from ordinary lawsuits in that they seek to dissuade one from exercising a lawful right, such as testifying at a City Council meeting, complaining to a medical board about an unfit doctor, investigating fraud in our education system, or participating in a political campaign,” explained Laura Lee Prather, a Texas attorney and board member for the Public Participation Project, to a recent Congressional subcommittee.

For a real-life example of a SLAPP, we’ve been covering the story of a California couple who were sued for defamation by a nursing home for simply copying their attorney on an email. They believe that the lawsuit, which was ultimately dismissed, was brought in retaliation for their raising concerns about conditions at the home.

CLICK HERE FOR MORE ON THE COUPLE SUED FOR CC’ING THEIR ATTORNEY ON AN EMAIL

In general, the goal is to leverage the legal system — and all its attendant costs and byzantine paperwork — in an effort to chill free speech.

Anti-SLAPP: The Patchwork Solution

While all states allow for defendants to challenge lawsuits on their merits before it gets to a trial, only about half of U.S. states have so-called “anti-SLAPP” statutes, that allow for expedited review of potential SLAPPs.

The idea is that, by filing the anti-SLAPP motion, the defendant can get the court to weigh in on the frivolousness of a lawsuit before it gets into the time-consuming and costly discovery process. Some states also have conditions in their anti-SLAPP laws that can make the plaintiff pay for at least some of the defendant’s legal expenses.

However, not all anti-SLAPP statutes are created equal, with California and New York representing the two ends of the SLAPP spectrum.

The California statute, generally seen as the most pro-defendant, allows for an expedited hearing on the defendant’s motion to strike, and will award the defendant attorney fees and court costs if the defendant prevails.

Compare that to New York’s — widely considered the weakest of the current anti-SLAPP statutes — where defendants can only seek dismissal from lawsuits filed by plaintiffs that are “public applicants or permittees” (anyone who has or is seeking some sort of government license to do business).

Additionally, while many anti-SLAPP statutes call for the court to pause the discovery process pending the outcome of the motion to dismiss, in New York that process is allowed to continue. A New York defendant can file a separate motion to stay discovery — and any sensible defense attorney would file that motion — but the stay is not automatic.

Finally, though New York’s statute allows for the court to award legal fees and court costs in successful anti-SLAPP motions, it does not have to.

Yet even some California attorneys we spoke to about this issue note that a lot of lawyers in the state aren’t well-versed in the anti-SLAPP statute, meaning that frivolous lawsuits continue to clog the system and faulty anti-SLAPP motions are filed and appealed over and over.

One California lawyer tells Consumerist that the attitude among some of her colleagues is that “The cure has become the disease,” noting that one state appeals court justice confided in her that they wished the state would repeal the anti-SLAPP statute simply because it’s too complex.

That lack of understanding can have dire consequences for defendants in California, even if they are successful in having a case thrown out.

Say you’re a defendant in what you contend is a SLAPP. You have every reason to believe the entire case should be dismissed so you ask the court for summary judgment; something that happens in just about every civil case, regardless of the odds of success.

Now imagine that the judge is having a bad day and decides to deny your summary judgment motion. You ultimately win your case, but because you failed at that one step, you’re basically out of luck if you want to later file a malicious prosecution case against the people that sued you.

It’s known as the “interim adverse judgment rule,” and effectively means that if you didn’t succeed at the summary judgment stage, then the plaintiff in that original lawsuit must have had probable cause to sue you.

Until very recently, this rule even applied to anti-SLAPP motions. Thus, in our story about the nursing home, if the defendants had initially failed to make their anti-SLAPP case, their current malicious prosecution suit would be dead in the water.

The Federal Case

There is no federal anti-SLAPP statute, meaning that this remedy is not available for many cases filed in the U.S. District Court system. There is also confusion among the various federal circuits about whether or not state anti-SLAPP laws apply when a lawsuit involves both state and federal claims. Some circuits say the state statutes can apply, while the D.C. Circuit held in 2014 that they do not.

The absence of a federal statute is even more problematic for federal causes of action, because they must be held in federal court.

For example, AMC recently made hollow-sounding allegations of copyright infringement against the operators of a Walking Dead spoiler site.

This was clearly a case of a wealthy TV network throwing its weight around to prevent someone from revealing plot points about a TV show, but the website operators capitulated, admitting that they would not be able to fight AMC in court.

That’s because copyright disputes — with the exception of claims involving pre-1972 musical recordings — are federal causes of action, meaning the website operators would have no anti-SLAPP option available.

The lack of a federal anti-SLAPP statute — coupled with the uneven patchwork of state laws — means large plaintiffs can practice “forum shopping,” picking the court with rules that best favor their case.

“If you had a federal statute, that would level the playing field,” argues Jeremy Rosen of the Public Participation Project, which has been pushing for Congress to provide anti-SLAPP protection on a nationwide basis.

Congress is currently considering a piece of legislation, the SPEAK FREE Act, which would extend anti-SLAPP protections to federal courts and give defendants in states with no, or weak, anti-SLAPP statutes the option of filing a special motion to dismiss through the federal court system. Thus, even if a case involves only issues of state law, the defendant can try to have the dispute removed to a federal court solely to litigate the anti-SLAPP motion.

The SPEAK FREE Act is that rare piece of legislation that has bipartisan support, giving it higher than usual odds of actually being enacted, but some critics of the bill say this removal aspect of the law — as currently written — could open the door to potential harms for consumers.

The most prominent issue raised by these advocacy groups — including Public Citizen, National Consumer Law Center, and the National Association of Consumer Advocates — is that companies sued in state court could counter legitimate lawsuits by filing merit-less anti-SLAPP motions solely for the purpose of having the case removed to a slower-moving federal court, or that government agencies could likewise abuse anti-SLAPP protections.

“[T]he bill unnecessarily, and we think unconstitutionally, federalizes state-law claims, allowing defendants to delay litigation by dragging wholly state-law claims into federal court,” explain the critics in a letter [PDF] written in advance of last week’s hearing. “It also fails to except certain defendants (government defendants and intervenors) from the scope of the bill, potentially enabling those defendants to use the bill inappropriately to delay and deter litigation.”

The SPEAK FREE Act has a long road to go and could face multiple revisions along the way. We’ll be keeping an eye on it as it tries to survive the legislative gauntlet.

At the very least, the issues surrounding the proposed law demonstrate just how difficult it is to craft an anti-SLAPP statute that will work for both state and federal cases.

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