|
Anti-SLAPP
Anti-SLAPP
is a complex and unusual area of law that holds great danger
for unwary plaintiffs, and great relief for unfairly burdened
defendants. The Law Office of David C. Beavans is one of
San Diego's most experienced law firms in this area.
What
is SLAPP?
SLAPP stands for "Strategic Lawsuit Against Public
Participation." A SLAPP lawsuit isn't brought to seek
repayment for an injury, but instead to silence and intimidate
an innocent defendant. SLAPP'ers don't care if they win
or lose; their interest is in bullying the defendant into
backing out of a public issue.
In
a typical SLAPP case, an individual criticizes another party,
either in a public forum or to the government or quasi-governmental
body, then the offended party sues the speaker in order
to silence them. The classic case is where an environmental
activist alleges that a Large Company X is violating the
law. Large Company X, with their large litigation budget,
sues the activist for defamation. The activist discovers
that hiring a lawyer to defend himself from even a frivolous
suit can cost him tens of thousands of dollars, so he is
forced to choose between a large attorney bill, litigating
on his own and likely facing a large judgment against him,
or being silenced. The financially reasonable answer is
to be silenced. Thus Large Company X wins.
To
fight against SLAPP lawsuits like those by Large Company
X, California enacted Code of Civil Procedure 425.16, otherwise
known as "Anti-SLAPP." Anti-SLAPP gives innocent
defendants quick and final relief from SLAPP lawsuits. If
a defendant wins an anti-SLAPP motion, the complaint is
dismissed, and the defendant is relieved of all liability
once and for all.
Moreover,
a SLAPP'ing plaintiff will be responsible for paying the
defendant's legal fees. This means that a defendant can
be represented by The Law Offices of David C. Beavans for
little or no expense - the other side pays his bill. The
attorney is often entitled to a 2x multiplier on his fees
under Ketchum v. Moses (2001) 24 Cal. 4th 1122. The
defendant's attorney is also entitled to fees for his attorney
fees motion. Legal fees against a SLAPP'ing plaintiff
typically range from $40,000 to $60,000.
SLAPP
cases are uncommon and complex, which is why it is so important
to seek out an attorney with experience in this area of
law. It is a rare litigator who sees even one anti-SLAPP
case. The Law Offices of David C. Beavans has litigated
six anti-SLAPP matters, making it one of the most experienced
anti-SLAPP firms in San Diego.
How
can your firm help?
The Law Offices of David C. Beavans has effected the following
results in litigation:
- On
a wage-and-hour suit, opposing party (incorrectly) counter-sued
for our clients filing a "frivolous lawsuit."
Result: Cross-complaint dismissed completely, $13,000
in attorney fees awarded, driving the plaintiffs to the
negotiating table.
- Opposing
party sued our client for defamation based on a complaint
letter sent to California Board of Psychology. Result:
Lawsuit dismissed. $50,000 in attorney fees requested,
forcing plaintiff into bankruptcy.
- Party
sued our client for defamation and infliction of emotional
distress when accused of child molestation to San Diego
Family Court and the police. Result: $70,000 in attorney
fees requested, resulting in 4-figure settlement and dismissal
of all claims against our client.
- Party
sued for fraud on the basis of false statements made during
the course of settlement negotiations in a previous lawsuit.
Result: SLAPP granted. Case dismissed, and cash settlement
reached prior to attorney fees award.
- Party
sued for lost rent as a result of a restraining order.
Result: SLAPP awarded. Threat of attorney fees award used
to drive the case to an advantageous settlement.
- Our
client was sued for defamation and intentional infliction
of emotional distress based on a consumer complaint on
the internet and to the Better Business Bureau against
credit card processing company. Result: pending.
The
California legislature wrote the Anti-SLAPP section very
broadly. There are many circumstances where an aggrieved
defendant can seek relief. To succeed, the defendant has
to show two things: 1) that the act the Plaintiff is suing
about, arises from the defendant's rights of free speech
or freedom to petition, and 2) that Plaintiff is unliekly
to succedd if he brought the matter to trial.
The
first prong is often the most important. A defendant has
to show that the act the plaintiff is complaining of "arises"
from the defendant's first amendment rights. Because the
defendant is protected by the 1st Amendment, he can use
anti-SLAPP to quickly free him from a frivolous lawsuit.
How
do you know if you've been SLAPP'ed?
The causes of action in a SLAPP complaint are typically
one or more of the following:
- Defamation
- Libel
(written defamation)
- Slander
(oral defamation)
- Trade
Libel
- Intentional
Infliction of Emotional Distress
- Negligent
Infliction of Emotional Distress
- Interference
with Contractual Relations
- Interference
with Economic Advantage
- Fraud
- Breach
of Contract
- Extortion
What
is protected activity?
The 1st Amendment protects speech on a "matter of public
concern," and it protects any speech or action directed
to an official governmental (or quasi-governmental) body.
Anti-SLAPP protections pop up in unexpected places. If you
think you have been sued for any of the following actions
(or if you are thinking of suing someone for the following
actions). you need to call the Law Offices of David C. Beavans
right away. Most anti-SLAPP actions have a 60-day time limit/deadline
after the complaint is filed.
Here
are some scenerios where the defendant may be protected
by Anti-SLAPP. If you are sued because you did any of the
following, you should contact The Law Offices of David C.
Beavans immediately:
- Making
a statement in court.
- Filing
a lawsuit, or applying for a restraining order.
- Making
a statement in preperation for a lawsuit or court hearing.
- Making
a statement to "an investigatory body" such
as the police, the FBI, Child Protective Services, Family
Court Services, etc.
- Making
a negative statement about a third party to a government
body, such as a licensing board, the IRS, etc.
- Making
a negative statement on a "matter of public interest"
(that is, one that affects more than a small number of
people).
- Making
a negative statement in a "public forum," for
example by posting a comment on an internet site, or by
protesting on a sidewalk.
Anti-SLAPP
is a complex area of law, and it offers significant dangers
to those who are not knowledgable of it. If you feel that
you are the victim of a retalitory lawsuit, or it you have
been served with an anti-SLAPP motion, contact The Law Offices
of David C. Beavans right away for a free consultation.
|
