As we approach the fifth anniversary of the date the DC anti-SLAPP statute became effective, recent decisions have me wondering if we are witnessing increased hostility against anti-SLAPP statutes nationwide?

First are decisions in Vermont and Louisiana, interpreting those states’ anti-SLAPP statutes in a way that requires all motions to be based upon speech in connection with a public issue or an issue of public interest.  Both courts arrive at this conclusion only by ignoring the plain language of the respective statutes, which did not include a public interest requirement for certain anti-SLAPP motions – those based upon “an oral or written statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law” (Vermont) or “[a]ny written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law” (Louisiana).  Notwithstanding the foregoing, both courts imported a “public interest” requirement into these prongs.  The Vermont Supreme Court was transparent that one of its motivations was a concern about anti-SLAPP motions otherwise flooding the courts.

The great expansion of anti-SLAPP motions was front and center in a California intermediate appellate court decision issued in August, Hewlett-Packard Co. v. Oracle Corp., in which the court openly begged the California General Assembly to curb the flood of anti-SLAPP motions.  There, after a lengthy litigation spanning almost two years, and on the eve of a trial on damages, Oracle filed an anti-SLAPP motion.  After the anti-SLAPP motion was denied by the trial court, Oracle appealed (which stayed the underlying litigation).

The California appellate court affirmed denial of the anti-SLAPP motion.  In doing so, however, it noted that, while “[a]n archetypal SLAPP would be an action in which ‘a developer sues neighborhood activists for having spoken out against the developer’s project in some public forum,’” the California anti-SLAPP statute “sweeps far beyond this paradigm, reaching any lawsuit or claim found to arise from a party’s actions in litigation, whether or not the activities – or the litigation – have any connection to an issue of public significance or interest, or to anything that might plausibly be labeled ‘public participation.’  As a result of this overbreadth, we have seen far more anti-SLAPP motions in garden-variety civil disputes than in cases actually resembling the paradigm.”  The Oracle court ended its decision with a plea for relief:

The case thus provides yet another illustration of the many ways in which the current anti-SLAPP statute produces unintended and even perverse results.  It can be argued that the overbreadth of the statute has made the cure worse than the disease.  To be sure, the statute achieves its intended purpose in true SLAPP cases, i.e., patently meritless suits brought to punish and harass adversaries in the public arena.  But if it makes short work of suits like that, it makes much longer and more expensive work of many suits bearing no resemblance whatever to the targeted paradigm.  It is as if a city had decided to cure an illness afflicting a few of its residents by lacing the water supply with a chemical that would indeed cure those sufferers, but would sicken a larger number of previously healthy citizens.

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We can only join a chorus of other courts in pleading with the Legislature to examine the real-world effects of the statute on ordinary civil disputes and to seek a ways to reduce the overwhelming temptations it currently offers to engage in abuses at least as injurious as those it was designed to correct.

Texas, which enacted its anti-SLAPP statute in June 2011, has also seen an explosion of anti-SLAPP litigation.  In a June decision, deciding whether claims in a boundary dispute between neighbors were subject to dismissal under the Texas anti-SLAPP statute, a justice on a Texas intermediate appellate court vented about the breadth of the of the Texas statute:

while the TCPA might indeed capture some “legal actions” that are truly SLAPPs as conventionally understood, the vastness of the range of “legal actions” that are deemed suspect by this statutory framework and ultimately excised from the civil justice system ensures that the Act will operate arbitrarily in relation to any “anti-SLAPP” goal in many, if not most, of the cases to which it applies.  This case is a good illustration.

Serafine has not preserved any contention that the Blunts asserted their counterclaims with the objective of punishing or chilling her exercise of expressive freedoms, as might be characteristic of a SLAPP.  Her argument, rather, is merely to the effect that the TCPA, as written, provides her (however fortuitously) with a tactical advantage that she is entitled to wield in her lawsuit against the Blunts.  The Blunts’ sin, in other words, is not that they asserted a “legal action” that anyone contends is truly a SLAPP in the conventional sense, but merely that they pleaded compulsory counterclaims that happened to implicate the TCPA (at least in part) and that they could not overcome the “prima facie case” requirement.

In addition to those courts sounding the alarm about the flood of anti-SLAPP motions, other courts have recently held that anti-SLAPP statutes are constitutionally infirm, or, at a minimum, problematic.

In May, the Washington state supreme court ruled that state’s anti-SLAPP statute was unconstitutional because it required trial courts to weigh competing evidence – which was a function expressly reserved for the jury.  As a leading commentator noted, the “surprising – almost shocking – ruling” “completely wiped Washington’s anti-SLAPP law off the books, leaving it without any anti-SLAPP protection at all.”

Also in 2015, the DC Circuit held, in Abbas v. Foreign Policy Group, that the DC anti-SLAPP statute conflicts with the Federal Rules of Civil Procedure, and is thus inapplicable in a federal court diversity case.  While not a direct response to the flood of anti-SLAPP motions, the Abbas decision has the effect of making federal court potentially unavailable for parties who want to file an anti-SLAPP motion.  (And don’t forget that there are the four judges on the Ninth Circuit who believe that court should overrule its prior precedent and hold that: (a) California’s anti-SLAPP statute does not apply in federal court; and (b) there is no immediate right to appeal from the denial of an anti-SLAPP motion).

Moving forward, it will be interesting to see if these are outliers, or the beginning of a trend.