Anti-SLAPP statutes: From shield to sword

Enacted by the California Legislature in 1992, the anti-SLAPP statute was designed for a very specific and important purpose: to shield defendants from meritless lawsuits that might chill the exercise of their political rights to speak and petition on matters of public concern. In practice, as case law interpreting the codified protections has evolved, the anti-SLAPP statute has grown into a sword for proverbial Goliaths to hinder, delay, or strike down legitimate litigation at the outset. The playbook is simple: find an argument, no matter how contrived, that a complaint implicates public participation. File an anti-SLAPP motion and thereby automatically stay discovery. Even if the motion is denied, the ruling triggers automatic appeal rights and an automatic stay during the period of the appeal. There is very little risk to the strategy because the fee provisions are one-sided in favor of the movant--an imbalance that creates risk of six-figure fee applications but limited risk to defendants of an adverse fee award. Legitimate plaintiffs are required to sit on the sidelines and wait a year or more before they can ever engage in discovery or pursue meritorious claims, and the war of attrition tilts heavily against them.

It should be a relatively noncontroversial proposition that anti-SLAPP protections are vital to protecting rights of public participation for all manner of litigants, large and small. However, it appears the authors of the anti-SLAPP statute underestimated the creativity of good litigators and the ability of bad actors to transform unlawful conduct into something resembling protected activity. The end result is that anti-SLAPP motions are an almost inescapable component of regular civil litigation practice in California. These authors believe that critical steps to reframing the anti-SLAPP protections involve solving for the following:

The Automatic Stay of Discovery: An anti-SLAPP statute is one of the rare vehicles that triggers an automatic stay of discovery. No discovery may move forward pending the Court's ruling on the motion, meaning the case is not allowed to advance in any meaningful way. A conspiratorial mind might also assume that a defendant would be well served to file such a motion as a mechanism to conceal troubling evidence. This issue is especially concerning when one considers that the second prong of the anti-SLAPP analysis places the burden on the plaintiff to demonstrate the relative merits of their claims, yet the plaintiff has not had the opportunity to acquire any evidence beyond what they gathered prior to filing the complaint. This is despite the fact that the defendants are often the ones with superior information concerning their own conduct.

The stay on discovery is not necessary to anti-SLAPP protections. These authors believe a more prudent approach would be to allow discovery to continue, as with other pre-trial motions, and any defendant who believes the discovery is inappropriate may utilize the traditional safeguard of a motion for protective order.

The Automatic Appeal: Additionally, an anti-SLAPP order is one of the rare pre-trial rulings that, when denied, can be appealed immediately. The appeal preserves the discovery stay until the remittitur is issued, only further delaying a plaintiff's opportunity to obtain necessary evidence and reach a resolution on its claims. The authors believe the more appropriate approach would be to treat an anti-SLAPP denial in the same manner as demurrers and summary judgment motions. The denials can be considered in the ordinary course on a post-judgment appeal. Writs would still be available in those rare circumstances where urgent intervention is truly needed. We will see if the Ninth Circuit agrees when it considers the issue shortly in its rehearing en banc of a recent decision in Martinez v. Zoominfo Technologies, Inc.

One-Sided Attorney's Fees: Civil Code section 1717 serves a vital role in leveling the proverbial playing field by providing for mutual application of one-sided attorney's fees provisions. There is little reason for anti-SLAPP protections to be any different. Yet, for now, they are. A plaintiff may only recover attorney's fees where the motion is considered frivolous--a rare occurrence. A prevailing movant, however, is automatically entitled to fees. The result is little risk to filing an anti-SLAPP motion but great financial risk for opposing one. These authors believe that the risk to the parties should be coextensive, and that the balance of mutuality of attorney's fees recovery should be restored.

Overly Broad Interpretation: What was once intended to be a narrow statute with specific contours and confines has become, through judicial interpretation of perhaps unintended statutory overbreadth, a vast behemoth of application. For instance, in Baral v. Schnitt, the California Supreme Court interpreted the anti-SLAPP statute as applying to any part of a complaint, not just to the complaint as a whole. As a result, creative litigators look to detect whether any part of any claim in a complaint can be framed as protected activity. Additionally in Wilson v. CNN, the California Supreme Court enshrined that protected activity reaches beyond speech activity. Neither is necessarily wrongly decided, but they demonstrate the manner in which, as a whole, the anti-SLAPP statute is being expanded and overapplied beyond its intent.

Ultimately, effecting changes in the anti-SLAPP statute requires a confluence of legislative action and judicial interpretation. It also requires understanding that this is not just a "little plaintiff vs. big defendant" issue. Anti-SLAPP motions arise in all sorts of contexts, including large disputes among major parties and smaller disputes among smaller parties. More fundamentally, it involves recognizing that rectifying these issues is critical to: (i) resetting the balance among litigants; (ii) stopping procedural gamesmanship and abuse; and (iii) unclogging the judicial backlog created by these cases effectively standing still while that gamesmanship occurs.